REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

EARL S. HINES, United States Magistrate Judge

This case is referred to the undersigned United States Magistrate Judge for review, hearing if necessary, and submission of a report with recommended findings of fact and conclusions of law.

I. Nature of the Case

II. Proceedings

After administrative denial of her claim initially and on reconsideration, she requested and was granted a hearing before an administrative law judge ("ALJ"). That hearing was conducted on December 7, 2000, before ALJ Russell D. Pulver. Judge Pulver issued a decision denying benefits on February 23, 2001.

Following the administrative hearing, plaintiff requested review of the ALJ's decision by the Appeals Council. On August 2, 2001, the Appeals Council denied plaintiff's request for review. Tr. 5-6. Thereafter, plaintiff timely filed the instant appeal in federal court on September 14, 2001.

III. Judicial Review

Judicial review is limited. The court's abbreviated role is to determine whether (a) the Commissioner applied proper legal standards and (b) the decision is supported by substantial evidence. See Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir. 1992).

Substantial evidence is more than a scintilla, but less than a preponderance. Anthony, 954 F.2d at 292. It requires evidence relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 1427 (1971); Marcello v. Bowen, 803 F.2d 851, 853 (5th Cir. 1986) (citing Jones v. Heckler, 702 F.2d 616, 620 (5th Cir. 1983).

To determine whether substantial evidence exists to support the ALJ's findings, the entire record must be scrutinized carefully. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994), cert. denied 514 U.S. 1120, 115 S.Ct. 1984 (1995); Ransom v. Heckler, 715 F.2d 989, 992 (5th Cir. 1983). The court in reviewing the record may not, however, reweigh the evidence or review the ALJ's decision de novo. Haywood v. Sullivan, 888 F.2d 1462, 1466 (5th Cir. 1989); Neal v. Brown, 829 F.2d 528, 530 (5th Cir. 1987). Rather, it is for the Commissioner to weigh evidence and resolve conflicts. See Anthony, 954 F.2d at 295; Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).

If proper principles of law were applied, and if the Commissioner's decision is supported by substantial evidence, the Commissioner's findings are conclusive and must be affirmed. Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (quoting Consolidated Edison Co. of New York v. National Labor Relations Board, et al., 305 U.S. 197, 230, 59 S.Ct. 206, 217 (1938)); see also, 42 U.S.C. § 405(g) (2001).

By local orders of the court, complaints seeking judicial review of administrative decisions denying applications for social security benefits are treated as appeals. The party seeking review is required to specify alleged points of error, and to submit a brief containing legal arguments directed to those points. The Commissioner is ordered to file a brief in response. The court limits the scope of its judicial review to the points argued in the briefs.

IV. Eligibility for Disability Insurance Benefits

The Act defines a disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A) (2001). A physical or mental impairment is one which "results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3) (2001). A claimant is 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." 42 U.S.C. § 423(d)(2)(A) (2001).

Establishment of a disability is thus a dual process. First, the claimant must prove that he suffers from a medically determinable impairment. 42 U.S.C. § 416(I)(1), 423(d)(1)(A) (2001). Second, the claimant must prove that his impairment or combination of impairments renders him unable to engage either in the work he previously performed or other substantial gainful employment that exists in the national economy. 42 U.S.C. § 416(I)(1), 423(d)(2) (2001).

V. Sequential Evaluation Process

The law requires, in every case, that the Commissioner determine whether the claimant has a disability. See Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952 (1983). The Commissioner utilizes a five-step sequential evaluation analysis to aid in determining when claimants are disabled. If a claimant is found not to be disabled at any step, the remaining steps are not considered. 20 C.F.R. § 404.1520 (2002). This procedure has judicial approval as a fair and just way for determining disability applications in conformity with the Social Security Act. See Bowen v. Yuckert, 482 U.S. 137, 153, 107 S.Ct. 2287, 2297 (1987) (citing Heckler v. Campbell, 461 U.S. at 461, 103 S.Ct. at 1954) (The use of the sequential evaluation process "contribute[s] to the uniformity and efficiency of disability determinations").

The five steps — with explanatory parenthetical commentary — generally are as follows:

The Commissioner ascertains whether the applicant is currently engaging in substantial gainful activity. (If so, a finding of non-disability is entered and the inquiry ends.)

The Commissioner determines if the applicant's impairment or combination of impairments is severe, that is, of a magnitude sufficient to limit significantly the individual's physical or mental ability to do basic work activities. (If not, the inquiry ends and a finding of non-disability is entered.)

The Commissioner determines whether the severe impairment equals or exceeds those in the Listing of Impairments, 20 C.F.R. Subpt. P, Appendix 1 ("the Listings"). (If so, disability is presumed and benefits are awarded.)

The Commissioner determines whether the impairment prevents the individual from engaging in his regular previous employment. (If so, a prima facie case of disability is established and the burden of going forward (to the fifth step) shifts to the Commissioner. See Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th Cir. 1987)).

The Commissioner determines whether other work exists in the national economy which the applicant can perform. (If the Commissioner establishes that an applicant can perform alternative employment, the burden shifts back to the applicant to show he cannot perform the alternative labor. See Id.; Taylor v. Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986); 20 C.F.R. § 404.1520(a)-(f) (2002)).

In conjunction with steps four and five, the Commissioner utilizes a residual functional capacity ("RFC") assessment. That is, the Commissioner decides whether the applicant, notwithstanding severe impairment, has the physical and mental ability to perform activities generally required by competitive, remunerative work. See 20 C.F.R. § 404.1545 (2002); Soc. Sec. Ruling 96-8p, 61 F.R. 34474 (July 2, 1996). The Commissioner assesses the applicant's physical, mental, and sensory abilities, evaluates how they apply to the applicant's work-related functioning, and finally considers whether the applicant can sustain work-related activities in a work setting on a regular and continuing basis. Id. Thereafter, the Commissioner determines if claimant has the physical and mental abilities to perform past relevant work. See Chaparro, 815 F.2d at 1010. If the applicant's RFC meets or exceeds the requirements of regular previous employment, the disability claim is denied. See 20 C.F.R. § 404.1561 (2002). If not, however, the inquiry proceeds to step 5 where the Commissioner has the burden to show that the applicant can do work as it is generally performed in the national economy. See Chaparro, 815 F.2d at 1010; 20 C.F.R. § 404.1566 (2002).

VI. Evidentiary Record A. Treating Physicians' Records

In January, 1998, neurologist Dr. Donald Russell noted that plaintiff had sensory loss in lower extremities but "preserved position sensation." Tr. 147, 157. In June, 1999, neurologist Dr. Sujin Yu noted "stocking glove distribution sensory loss" and the presence of Romberg's sign. Tr. 203. In September, 1999, cardiologist Dr. Joe Ballesteros noted that plaintiff's peripheral neuropathy has "markedly restricted her activities." Tr. 186.

B. Consulting Physician Residual Functional Capacity Assessment

The record also contains a residual functional capacity assessment, completed by Walter Buell, M.D., a consulting, non-examining physician contracted by Texas Rehabilitation Commission's Department of Disability Determinations. Dr. Buell's assessment purports to analyze plaintiff's capacity for work-related activity from a review of plaintiff's medical records, but without benefit of a personal examination. Dr. Buell opined that plaintiff is capable of light work and found no non-exertional limitations. Tr. 209-15.

Expert Vocational Testimony

Maunsell Wilkinson, certified rehabilitation counselor and licensed vocational rehabilitation counselor, testified as a vocational expert (VE). (Tr. 70). VE Wilkinson, testified hypothetically that a person with a residual functional capacity for light work who must change positions (sit or stand) every thirty minutes could not perform plaintiff's past work. He further testified that jobs at either the light or sedentary exertional level are limited for a person who must change positions every thirty minutes. Tr. 47-8. When asked to identify available jobs if plaintiff is capable of the full range of sedentary work with no sit/stand limitation, the VE listed clerk positions in claims and insurance, information/receptionist, and admitting and diet clerk positions. Tr. 48.

Plaintiff's Testimony

Plaintiff testified that she cannot sit in a straight chair, stand, or walk without pain in her feet. Tr. 35-6. She testified that pain causes her to spend much of the day in her recliner with her feet elevated (Tr. 38), and when she walks, she does so "precariously" (Tr. 37). Plaintiff's husband, Weldon Browning, testified that plaintiff's pain has greatly limited her mobility and that her gait is slow and careful. Tr. 42. He further testified that plaintiff's pain is observable (Tr. 42, 44), is aggravated if she over-exerts herself during the day (Tr. 43), and caused her to abandon her career as a nurse (Tr. 45).

VII. ALJ's Decision

ALJ Pulver issued a decision on February 23, 2001, wherein he determined that plaintiff is not disabled under governing rules. Following the sequential analysis framework, ALJ Pulver made the following determinations:

Step 1: "The claimant has not engaged in substantial gainful activity since the alleged onset of disability." Tr. 21, Finding 2.

Step 2: "The claimant has an impairment or a combination of impairments considered `severe'." Tr. 21, Finding 3.

Step 3: "These medically determinable impairments do not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4." T. 21, Finding 4.

Step 4: a. "The claimant has the following residual functional capacity: full range of sedentary." Tr. 22, Finding 7. "The claimant's ability to perform the full range of sedentary work is affected by her exertional and non-exertional limitations." Tr. 22, Finding 13.

b. "[T]he claimant's former work exceeds [her] residual functional capacity in exertional demand and . . . she is therefore unable to perform any past relevant work." Tr. 20.

Step 5: "[U]sing medical-vocational rule 201.15 as a framework for decision-making, there are a significant number of jobs in the national economy that [plaintiff] can perform." Tr. 22, Finding 14.

Specifically, ALJ Pulver determined that plaintiff can perform at the exertional level required for sedentary work, and that her non-exertional impairments do not prevent her from performing work as "claims and insurance clerk," "appointment and information clerk," and "admitting and diet clerk." Tr. 22, Finding 14. ALJ Pulver therefore concluded that plaintiff is not disabled and is ineligible for benefits. Tr. 22, Finding 16.

VIII. Points of Error

Plaintiff asserts two points of error that are reprinted verbatim in the note. For analytical convenience, these points are rephrased and categorized as follows.

The Commissioner's decision is not supported by substantial evidence because:

A. ALJ Pulver failed to elicit a treating source's opinion regarding plaintiff's ability to work, and

B. VE Wilkinson's opinion testimony does not identify transferable skills or explain how those skills may transfer to other work.

Plaintiff's first point constitutes a basis for deciding this action. Accordingly, only it is examined. Essentially, plaintiff argues that determining a claimant's residual functional capacity without a medical source opinion thereof is grounds for remand because it constitutes failure to fully and fairly develop the record. Pl.'s Br. at Arguments.I.

In conjunction with this argument, plaintiff cites and relies upon Ripley v. Chater, 67 F.3d 552 (5th Cir. 1995). In Ripley, there was no treating medical source statement describing the types of work that the applicant was capable of performing. The Fifth Circuit remanded the action to the Commissioner with instructions to "obtain a report from a treating physician regarding the effects of Ripley's . . . condition upon his ability to work." Id., at 558.

The Commissioner's response does not address plaintiff's argument that a treating medical source statement of residual functional capacity is a necessary prerequisite. Neither does the Commissioner discuss or distinguish the Fifth Circuit's Ripley decision. Rather, the Commissioner responds generally that substantial evidence supports the ALJ's decision. The Commissioner argues that ALJ Culver properly considered all evidence of record, including medical evidence and plaintiff's testimony of her daily activities, when determining her residual functional capacity. The Commissioner further argues that medical evidence proves that plaintiff's impairments are long-standing conditions which are controlled by treatment and medication, that plaintiff did not prove that her conditions had worsened during the relevant period, and that the evidence instead proves that her impairments are not disabling. The Commissioner argues that ALJ Pulver's ultimate conclusion at Step 5 that plaintiff can perform work available in the national economy is supported both by expert vocational testimony from VE Wilkinson and the framework of reference provided by the grids. Finally, the Commissioner cites Vaughan v. Shalala, 58 F.3d 129, 130 (5th Cir. 1995), for the proposition that the absence of a physician's declaration that plaintiff is disabled weighs against her allegations of disability. Deft.'s Br. at III.A.

IX. Analysis and Discussion

Certain rudimentary considerations are relevant to proper analysis. First, circuit law recognizes that it is the Commissioner's sole responsibility and prerogative to determine whether a claimant is "disabled" under governing rules. See Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000); Martinez v. Chater, 64 F.3d 172, 176 (5th Cir. 1995) (citing Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir. 1990)). By necessary implication, only the Commissioner — through an ALJ or Appeals Council — can make the usually critical assessment of a claimant's residual functional capacity. 20 C.F.R. § 404.1546.

Second, determination of residual functional capacity requires assessment of all relevant evidence. Adjudicators must consider a claimant's ability "to meet certain demands of jobs, such as physical demands, mental demands, sensory requirements, and other functions." 20 C.F.R. § 404.1545(a) (2002). The Commissioner's regulations require that such determinations must be cast in terms of a claimant's ability to perform "work activity on a regular and continuing basis." 20 C.F.R. § 404.1545(b) (2002).

Third, the Social Security Act and the Commissioner's implementing regulations impose on persons who adjudicate claims the duty to fully and fairly develop facts relevant to a claim for benefits. Kane v. Heckler, 731 F.2d 1216, 1219-1220; 42 U.S.C. § 405(g); 20 C.F.R. § 410.640 (2002). Failure to carry out this duty may constitute a legal error that precipitates a decision not informed by sufficient facts. Consequently, a decision so tainted is considered unsupported by substantial evidence and is subject to reversal, provided that prejudice to the claimant is apparent. Newton v. Apfel, 209 F.3d 448 (5th Cir. 2000); Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995); James v. Bowen, 793 F.2d 703, 704 (5th Cir. 1986); (quoting Kane v. Heckler, 731 F.2d at 1219); see also Brock v. Chater, 84 F.3d 726 (5th Cir. 1996); Davis v. Califano, 599 F.2d 1324 (5th Cir. 1979); McGee v. Weinberger, 518 F.2d 330 (5th Cir. 1975).

Plaintiff's argues that ALJ Pulver failed to perform his duty to fully develop the record by not getting a treating medical source opinion regarding plaintiff's ability to meet certain demands of jobs, such as physical demands, mental demands, sensory requirements, and other functions. Since the record lacks that evidence, plaintiff argues that it is ipso facto deprived of the patina of substantial evidence. Fundamentally, plaintiff contends that an adjudicator's residual functional capacity assessment unsupported by a treating medical source opinion is fatally flawed.

Ripley v. Chater does not support plaintiff's principal argument. Indeed, the Fifth Circuit stated that "[t]he absence of such a statement, . . . does not, in itself, make the record incomplete." Id. at 557. The court cited language in 20 C.F.R. § 404.1513(b)(6) (1994) to the effect that ". . . lack of a medical source statement will not make the report incomplete." Therefore, plaintiff's contention that a treating medical source's opinion regarding a claimant's residual functional capacity is a sine qua non for a valid residual functional capacity determination must be rejected.

This conclusion does not end the inquiry. Ripley further instructs that when no medical statement of a claimant's residual functional capacity is provided, the court must focus upon whether the Commissioner's decision is supported by substantial evidence in the existing record. Ripley, 67 F.3d at 557. Finally, Ripley makes clear that to be substantial, such evidence cannot be exclusively medical, but must focus precisely on effects that medical impairments have on an applicant's ability to work. Id.

In the present case, as in Ripley, there is a vast amount of treating sources' medical evidence establishing that plaintiff suffers from diabetes, hypertension, hyperthyroidism and peripheral neuropathy. Such medical evidence includes voluminous progress reports, clinical notes, and lab reports. However, none makes any explicit or implied reference to effects these conditions have on plaintiff's ability to work. Consequently, the Commissioner cannot rely on this raw medical evidence as substantial support for ALJ Pulver's residual functional capacity assessment.

Unlike Ripley, the evidentiary record in the instant case does contain a medical source opinion regarding effects of plaintiff's impairments on her ability to work. This opinion came from Dr. Walter Buell, M.D., a physician contracted by Texas Rehabilitation Commission's Department of Disability Determinations. Dr. Buell reached his opinions that plaintiff has no non-exertional limitations, and that her exertional limitations do not prevent her from performing light work, solely from reviewing medical records.

Dr. Buell's evidence consists of his remarks in a standard Social Security form, viz., Form SSA-4734-BK. This form requires consulting evaluators to recite specific evidentiary facts and explain why the evidence supports their conclusions. See, e.g., Tr. 210, Item 6; Tr. 211, Item 7. Significantly lacking in Dr. Buell's assessment, however, is any explanation or basis for his conclusions. He cites no facts, and gives no justification for his conclusions regarding plaintiff's residual exertional capacity and ability to work. Dr. Buell, therefore, ignored the Commissioner's explicit requirement to recite specific evidentiary facts and explain why the evidence supports his conclusions. Consequently, Dr. Buell's opinion — as it is reflected in the record before the court — is simply ipse dixit. It, too, cannot constitute substantial evidence for ALJ Pulver's residual functional capacity determination.

The only other evidence from which a residual functional capacity assessment could be made is plaintiff's and her husband's testimony. Nowhere in the testimony of either of these witnesses is there an evidentiary basis for finding that plaintiff retains residual functional capacity for sedentary work, as that term is defined in applicable regulations. Instead, plaintiff and her husband collectively testified that she cannot sit for long periods of time without pain.

Finally, the Commissioner's reliance on Vaughan v. Shalala is misplaced. Vaughan holds that when assessing credibility of a claimant's subjective symptomology, an ALJ may consider the fact that no examining physician pronounced the claimant disabled. Id., at 131. It does not hold that an ALJ is free to make a residual functional capacity assessment without benefit of any evidence relating to the effects of a claimant's impairments on her ability to work. Thus, when no physician in this case declared plaintiff disabled, such fact was useful to ALJ Pulver only when deciding whether to credit plaintiff's subjective testimony. Lack of physician opinion regarding disablity did not constitute affirmative evidence of residual functional capacity. Lack of such evidence did not leave ALJ Pulver free to speculate based on raw medical data.

ALJ Pulver's sequential step evaluation took him through all five steps. Thus, it was incumbent upon the Commissioner to show that jobs exist in the national economy that plaintiff is capable of performing. VE Wilkinson testified that such jobs exist, but that testimony was based on ALJ Pulver's determination that plaintiff has residual functional capacity for sedentary work. Since the residual functional capacity determination is not supported by substantial evidence, VE Wilkinson's testimony, premised on such unsupported assessment, also cannot be considered as substantial evidence.

X. Recommendation

The Commissioner's decision should be reversed for lack of substantial evidence supporting the residual functional capacity determination. The case should be remanded for further evidentiary proceedings.

Objections

Within ten (10) days after receipt of the magistrate judge's report, any party may serve and file written objection to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C) (2001).

Failure to file written objections to the proposed findings and recommendation contained in this report within 10 days after service shall bar an aggrieved party from de novo review by the district court of the proposed findings and recommendations.