Norris v. Colvin
MEMORANDUM OPINION AND ORDER: The Commissioner's decision is AFFIRMED. (Ordered by Magistrate Judge Irma Carrillo Ramirez on 3/22/2017) (sss)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LYNDA MICHELLE NORRIS,
NANCY A. BERRYHILL, ACTING,
COMMISSIONER OF THE SOCIAL
Civil Action No. 3:15-CV-3634-BH
MEMORANDUM OPINION AND ORDER
Pursuant to the consent of the parties and the order of reassignment dated April 26, 2016, this
case has been transferred for the conduct of all further proceedings and the entry of judgment. (doc.
17.) Before the Court is Plaintiff’s Brief, filed March 20, 2016 (doc. 13), Defendant’s Brief, filed
May 19, 2016 (doc. 20), and Plaintiff’s Reply Brief, filed June 9, 2016 (doc. 24).1 Based on the
relevant findings, evidence, and applicable law, the Commissioner’s decision is AFFIRMED.
Lynda M. Norris (Plaintiff) seeks judicial review of a final decision by the Commissioner
of Social Security (Commissioner)3 denying her claim for disability insurance benefits (DIB) under
Title II and supplemental security income (SSI) under Title XVI of the Social Security Act. On
On June 8, 2016, Plaintiff also filed Plaintiff’s Reply Brief (doc. 23), which appears the same as her reply brief filed
on June 9, 2016. (See docs. 23, 24.)
The background information comes from the transcript of the administrative proceedings, which is designated as “R.”
At the time of the initial filing of this appeal, Carolyn W. Colvin was the Acting Commissioner of the Social Security
Administration, but she was succeeded by Nancy A. Berryhill beginning January 20, 2017.
January 23, 2012,4 she applied for DIB and SSI, alleging disability beginning on December 10,
2011. (R. at 128-45.) Her claim was initially denied on April 18, 2012, and upon reconsideration
on June 6, 2012. (R. at 77-82, 89-92.) On August 2, 2012, she requested a hearing before an
administrative law judge (ALJ). (R. at 95-98.) She appeared and testified at a hearing on April 22,
2014. (R. at35-64.) On July 25, 2014, the ALJ issued his decision finding Plaintiff not disabled.
(R. at 18-29.) Plaintiff timely appealed the ALJ’s decision to the Appeals Council. (R. at 12-13.)
The Appeals Council denied her request for review, and the ALJ’s decision became the final
decision of the Commissioner. (R. at 1-5.) Plaintiff timely appealed the Appeals Council’s decision
under 42 U.S.C. § 405(g).
Age, Education, and Work Experience
Plaintiff was born on May 2, 1968, and was 45 years old at the time of the hearing on April
22, 2014. (R. at 39.) She had two years of junior college, and had previously worked as a sales
person/hardware (279.357-050, light, semi-skilled, SVP: 4), warehouse worker (922.687-058,
medium, unskilled, SVP: 2), and merchandise clerk (299.367-014, heavy, semi-skilled, SVP: 4).
(R. at 27, 39.)
Plaintiff was admitted to Baylor University Medical Center (Baylor) on October 14, 2009,
after the “sudden onset of the worse headache of her life.” (R. at 405.) A head CT demonstrated
a subarachnoid hemorrhage, and a CT angiogram demonstrated a basilar tip cerebral aneurysm. (Id.)
Plaintiff underwent coiling of the basilar tip aneurysm. (Id.) The surgery was “uneventful,” and a
The ALJ stated in his decision and at the hearing that Plaintiff filed her applications on January 20, 2012, but the
applications appear to be dated January 23, 2012. (See R. at 18, 37, 128-45.)
“[s]erial CT demonstrated progressive resolution of the subarachnoid hemorrhage.” (Id.) She
progressively improved and was discharged on October 23, 2009. (Id.)
On January 27, 2010,5 Plaintiff met with Waleed H. El-Feky, M.D., at Texas Neurology, P.A.
(Texas Neurology), for a follow up. (R. at 362.) Plaintiff reported to Dr. El-Feky that on October
13, 2009, she had the “worse headache of [her] life” and was taken to Baylor. (Id.) She was found
to have a subarachnoid hemorrhage and ruptured basilar tip aneurysm and underwent a coiling. (Id.)
Plaintiff denied any significant symptoms following the coiling, and Dr. El-Feky noted that she was
awake, alert, and oriented with normal language, memory, and attention. (R. at 362-63.)
Plaintiff had a CT of her head on February 8, 2010, at Baylor. (R. at 360.) William Taylor,
M.D., found no evidence of acute intracranial abnormality on the CT, which redemonstrated a
previously visualized large coil pack in the region of the basilar tip. (Id.)
Plaintiff had a follow up with Dr. El-Feky at Texas Neurology on March 26, 2010. (R. at
357.) He noted that Plaintiff was asymptomatic but had “some anxiety” and suffered from a panic
attack approximately once a month. (Id.) On March 9, 2011, Plaintiff returned to Texas Neurology
because she was worried about her past basilar aneurysm coiling. (R. at 235.) She also complained
that her skin tingled all over. (Id.) Quanetta L. Davis, PA-C, under the supervision of Dr. El-Feky,
noted that Plaintiff had “no new symptoms but would like to review her pictures of her brain for
reassurance.” (Id.) Ms. Davis noted that the reports showed she was stable. (R. at 236.)
On August 5, 2011, and September 23, 2011, Plaintiff met with Scott Farley, D.O., at
Comprehensive Spine Center of Dallas. (R. at 283-290.) Dr. Farley assessed low back pain and
lumbar radiculopathy. (R. at 286, 290.) He continued her use of Norco for pain, referred her to
Plaintiff’s New Patient Packet questionnaire was dated January 22, 2010, but it is unclear whether she had an
appointment on that day. (See R. at 365-68.)
physical therapy, and encouraged use of a back brace. (R. at 286.)
On August 19, 2011, an MRI of Plaintiff’s lumbar spine without contrast was performed.
(R. at 247.) The test found a 3- to 4-mm far left posterolateral disc herniation with moderate,
associated left neutral foraminal stenosis distally at L4-L5 and a 2- to 3-mm central disc protrusion
with annular tear at L5-S1. (Id.)
On October 5, 2011, Plaintiff presented at Cardinal Pain Center with a chief complaint of low
back and leg pain. (R. at 277, 279.) She met with Vijay Arvind, M.D., who noted that Plaintiff was
obese and in distress secondary to pain. (R. at 279.) He diagnosed her with lumbar radiculopathy,
myofascial pain, and lumbar spondylosis. (R. at 281.)
Plaintiff had an MRI/MRA brain examination of the head on November 7, 2011. (R. at 240.)
She returned to Texas Neurology on November 10, 2011, for a routine follow up and to review her
MRI/MRA brain results. (R. at 238.) Ky Yarborough, PA-C, under the supervision of Alan W.
Martin, M.D., noted that her repeat MRI brain with intracranial MRA demonstrated a stable, coiled,
aneurysm, and that Plaintiff reported she was “doing well” but had “occasional” headaches. (Id.)
Her physical exam was within normal limits. (See id.)
On January 24, 2012, Plaintiff returned to Cardinal Pain Center and again met with Dr.
Arvind. (R. at 274-75.) She again complained of back pain. (R. at 275.) Plaintiff reported that she
quit her job because she was unable to keep up with eight to 12-hour shifts as a result of “horrible
pain” going down her left leg. (R. at 275.) An MRI showed left L4 and L5 nerve root stenosis due
to disc herniation and an annular fissure at L5-S1. (Id.) A physical exam, which included a mental
status exam, was within normal limits, and Plaintiff was assessed with lumbar radiculopathy, lumbar
herniated nucleus pulposus, and lumbar degenerative disc disease. (R. at 275-76.)
On February 3, 2012, Plaintiff returned to Texas Neurology because of her headaches and
met with Ms. Yarborough.
(R. at 347) She reported daily headaches with photophobia,
phonophobia, nausea, and subjective memory loss of unclear etiology. (R. at 348.) Plaintiff was
started on Medrol and Amerge for her headaches. (Id.) Dr. Martin signed off on Ms. Yarborough’s
notes. (R. at 349.)
On March 24, 2012, Plaintiff attended a consultative psychiatric examination with Peter
Holm, M.D. (R. at 292-95.) She identified her chief complaint as anxiety and reported that she had
noticed a decline in her cognitive function since about one year after her aneurysm repair. (R. at
292.) Plaintiff also reported that she had not been employed full-time since January 2012 because
of her cognitive problems, but that she successfully had a one-day assignment the day before her
appointment. (See id.) She also reported that her eyes had been very light sensitive for the prior six
months, and that she experienced “some occasional headaches.” (Id.) Dr. Holm noted that Plaintiff
had been treated with Ambien and Ativan, which had helped with her sleep and her anxiety over her
perceived cognitive problems. (Id.) She denied any interactional problems with people but felt very
easily overwhelmed by tasks. (R. at 293.) He diagnosed an amnestic disorder not otherwise
specified and assigned a global assessment of function (GAF) of 45. (R. at 294-95.)
On April 17, 2012, state agency medical consultant (SAMC) Susan Thompson, M.D.,
completed a Psychiatric Review Technique for Plaintiff. (R. at 296-308.) She noted Plaintiff had
an amnestic disorder and found that she was moderately limited in maintaining social functioning
and maintaining concentration, persistence, and pace. (R. at 299, 306.) Dr. Thompson also found
that Plaintiff was mildly restricted in activities of daily living and had no episodes of
decompensation. (R. at 306.) Dr. Thompson opined that Plaintiff’s allegations were “partially
supported.” (R. at 308.)
Dr. Thompson completed a Mental Residual Functional Capacity Assessment. (R. at 31821.) She determined that Plaintiff was moderately limited in her ability to understand and remember
detailed instructions, carry out detailed instructions, maintain attention and concentration for
extended periods, complete a normal workday and workweek without interruptions from
psychologically based symptoms and perform a consistent pace without an unreasonable number
and length of rest periods, and accept instructions and respond appropriately to criticism from
supervisors. (R. at 318-19.) She could understand, remember, and carry out detailed but not
complex instructions, make decisions, attend and concentrate for extended periods, accept
instructions, and respond appropriately to changes in routine work setting. (R. at 320.)
SAMC James Wright, M.D., completed a Physical Residual Functional Capacity Assessment
for Plaintiff on April 17, 2012. (R. at 310-17.) Dr. Wright opined that Plaintiff could occasionally
lift and/or carry 20 pounds, frequently lift and/or carry 10 pounds, stand and/or walk for a total of
six hours in an eight-hour workday, sit for a total of six hours in an eight-hour workday, and push
and/or pull without limitations. (R. at 311.) He further opined that she could also occasionally
balance, stoop, kneel, crouch, crawl, and climb ramps and stairs, but she could never climb ladders,
ropes, or scaffolds. (R. at 312.) Dr. Wright also opined that Plaintiff’s allegations were “partially
supported.” (R. at 317.)
Progress notes from Dr. Martin at Texas Neurology for April 18, 2012, show that Plaintiff
complained of persistent anxiety and intermittent panic attacks but benefitted from Ativan. (R. at
325-27, 344-46.) She reported frequent headaches that responded to Tramadol, and exercise helped
her anxiety symptoms. (Id.) She complained of cognitive and memory symptoms when she was
anxious. (Id.) A physical examination was within normal limits. (R. at 325-26.) Plaintiff was
assessed as having an aneurysm of other specified artery, a generalized anxiety disorder, and
migraines, unspecified without mention of intractable migraine. (R. at 326.) She was prescribed
Hydrocodone as needed for the headaches and Buspar for the underlying anxiety. (Id.)
On June 4, 2012, Veena Ghai, M.D., affirmed Dr. Thompson’s mental RFC assessment for
Plaintiff. (R. at 329.) Likewise, Laurence Ligon, M.D., affirmed Dr. Wright’s physical RFC
assessment on June 5, 2012. (R. at 330.)
On August 16, 2012, Plaintiff had a MRA intracranial exam, which showed the previously
identified filling of the neck of the coiled basilar tip aneurysm; the configuration of the residual neck
filling appeared unchanged and “stable.” (R. at 342.)
On August 16, 2012, Plaintiff presented at Texas Neurology because of eye pain. (R. at
339.) Ms. Yarborough and Dr. Martin recommended that she consult with an ophthalmologist if the
pain was not resolved by her headache treatment. (R. at 340.)
On January 13, 2013, Plaintiff went to Baylor’s emergency room with a complaint of
headaches and a toothache as a result of broken teeth. (R. at 400.) A CT of the head without
contrast was performed, and she was discharged in stable condition the same day. (R. at 401, 403.)
The scan showed no evidence of acute intracranial process and a stable appearance of aneurysm coil
pack at the basilar tip. (R. at 403.) The doctors diagnosed Plaintiff with acute pain in mandible
dental caries, acute pain in maxilla dental caries, and headaches. (R. at 400-01.)
On April 5, 2013, an MRI of Plaintiff’s lumbar spine revealed left foraminal broad-based
disc protrusion at L4-L5 level causing moderate to severe left neural foramen narrowing, and small
central disc protrusion at the L5-S1 level without significant canal or foraminal narrowing. (R. at
On August 18, 2013, Plaintiff went to Baylor’s emergency room with a complaint of blisters
on her tongue. (R. at 397.) She reported having smoked for 33 years, but she quit in 2009. (Id.)
The doctors diagnosed her with stomatitis. (R. at 399.) Plaintiff was discharged the same day to
see a dentist and/or an oral maxillofacial surgeon. (Id.)
On September 6, 2013, Dr. Martin completed a one-page form that diagnosed Plaintiff with
an aneurysm, depression, and anxiety. (R. at 331.) He opined that she was unable to work but that
her disability was not permanent and that she “needs to be released by psychiatrist to resume work.”
(Id.) On June 19, 2013, Plaintiff had a MR brain and MR angiographic examination of the head and
met with Dr. Martin, who noted that her MRI and MRA appeared stable. (R. at 333-38.)
On September 20, 2013, Plaintiff went to Baylor’s emergency room because she felt unsafe
at home alone as a result of increasing depression, which she attributed to her prior aneurysm and
to her husband having left her that day. (R. at 392.) She was diagnosed with depression, suicidal
ideation (resolved), and elevated blood sugar, and was discharged the same day. (R. at 392-96.)
On September 21, 2013, Plaintiff went to Timberlawn Mental Health System (Timberlawn)
because of her depression. (R. at 437.) She met with people at Timberlawn from September 21,
2013, through February 27, 2014. (See R. at 430-44.)
Plaintiff had an MRA of the head on November 25, 2013, which demonstrated sequela of
prior endovascular coiling of a basilar apex aneurysm with small focus of residual filling at the neck
of the aneurysm, stable compared to multiple prior studies, and “otherwise unremarkable intracranial
arterial vasculature.” (R. at 428.)
From March 13, 2013 to November 6, 2013, Plaintiff went to Phoenix Pain Clinic for her
back pain and headaches. (R. at 479-97.) Jose Duarte, M.D., repeatedly noted that her medications
were “good enough for function,” but that she still had some pain. (R. at 479, 481, 484, 487, 489,
491, 493.) He also noted that Ultram helped with her headaches. (Id.)
On December 14, 2013, Plaintiff went to Baylor’s emergency room with a complaint of
headaches, anxiety, and pain to her posterior scalp, which had begun the day before. (R. at 388.)
She described the headaches as intermittent and sharp, but“[a]t its worst the pain was moderate.”
(Id.) It was accompanied by nausea, vertigo, and tingling on the right arm, and was aggravated by
light and noise. (Id.) She reported that she had experienced chronic headaches several times a
month since she had a cerebral aneurysm. (Id.) The doctors diagnosed Plaintiff with acute
headaches and anxiety. (R. at 388, 391.) Her neurological exam was normal. (R. at 390.) She felt
better after she was given medication and was discharged the same day. (R. at 390-91.)
A lumbar spine MRI was completed on February 27, 2014. (R. at 524.) It revealed
moderate-sized left foramial disc herniating at L4-L5 level, which caused moderate to severe left
neural foraminal stenosis with likely indentation/compression of the exiting left L4 nerve root and
mild spondylotic changes at L5-S1 level without significant canal or foraminal narrowing. (Id.)
Between February 26, 2014, and April 22, 2014, Plaintiff went to Pain Diagnostic and
Treatment Center, P.A., for her low back pain, and met with Timothey N. Zoys, M.D. (R. at 51628.) On March 5, 2014, Plaintiff followed up with Dr. Zoys. (R. at 522.) She reported that she felt
worse and described her pain as “aching, sore,” ranging from 8/10 to 10/10. (R. at 522.) A physical
and mental examination was within the normal limits. (See id.) He assessed her as having
displacement of lumbar intervertebral disc without myelopathy, lumbosacral radiculitis not
otherwise specified, and spinal stenosis of lumbar region. (Id.) An epidural steroid injection was
recommended, but Plaintiff held off because of financial issues. (R. at 517, 523.) Dr. Zoys
repeatedly noted that her response to the injection would determine whether further referral to a
comprehensive interdisciplinary pain management program was warranted. (R. at 516-17, 519,
521.) When Plaintiff was seen again on April 16, 2014, it was noted the percentage of functional
benefit and the percentage of pain relief with Norco treatment was 65-70 percent, and that she
reported no side effects to the medication. (R. at 518.)
On April 21, 2014 Khurshid Khan, M.D., completed a Medical Assessment of Ability to Do
Work-Related Activities (Physical) for Plaintiff. (R. at 512-14.) Dr. Khan opined that her ability
to lift/carry was not affected by her impairment. (R. at 512.) He also noted that she had two
herniated discs in her lower back, and that her ability to stand/walk and sit was affected by
impairment, which caused her to have “severe pain” when she stood or walked for more than 10
minutes. (Id.) Additionally, when Plaintiff sat for longer durations of time, she experienced
compression on a nerve. (R. at 513.) He opined that she could sit for 20 minutes total in an eighthour workday and 20 minutes without interruption. (Id.) She could occasionally climb, stoop,
kneel, and balance but never crouch nor crawl because of her herniated discs. (Id.) Dr. Khan also
opined that Plaintiff would not be a reliable worker due to her memory issues and her limited
dexterity and range of motion. (R. at 513-14.)
On April 22, 2014, Plaintiff and a vocational expert (VE) testified at a hearing before the
ALJ.6 (R. at 35-64.) Plaintiff was represented by an attorney. (R. at 37.)
Plaintiff’s hearing was initially set for October 24, 2013, but the ALJ reset the hearing so she could obtain
representation. (R. at 65-70.)
Plaintiff testified that she was 45 years old, right handed, 5' 4" tall, and weighed 180 pounds.
(R. at 39.) She was common-law married and had attended two years of junior college.7 (Id.)
Plaintiff alleged that she became disabled in December 2011, which was the last time she
worked full time, as a result of an aneurysm. (R. at 43.) From 2007 to December 2011, Plaintiff
maintained the video game sections in several stores, including Office Max, Circuit City, Walmart,
and Best Buy. (R. at 42.) She replaced old video systems with new ones and handled “resets,”
which included taking everything out of sections and replacing those sections with new shelving,
new products, and new tags. (R. at 42-43.) After her aneurysm in 2009, Plaintiff began to suffer
from headaches three to four time a week. (R. at 45.)
Plaintiff described her headaches as lasting one to two hours after she took her medication,
and she would “seclude” herself in her bedroom without any light until they passed. (R. at 45-46.)
Without her medication, her headaches persisted. (R. at 46.) She also suffered from diabetes and
“extreme” anxiety, which she did not have prior to her aneurysm. (Id.) Plaintiff related her anxiety
to a fear of dying because of her aneurysm. (See R. at 47.) She took Xanax, Klonopin, and
Tramadol. (R. at 45-46.)
Plaintiff started experiencing back pain in May 2011 after a “twist” and was diagnosed with
two herniated discs. (R. at 43-44.) The pain caused her to stay in bed for several days at a time.
(Id.) She had problems with her back throughout the day on a daily basis when she turned into
certain positions, or when she tried to pick up something. (R. at 43-45.) When that occurred, she
felt “extreme pain” that shot down her legs. (R. at 45.) After her aneurysm, Plaintiff also noticed
In her application for SSI, Plaintiff stated that she never married, but that her household consisted of her son and her
“boyfriend,” who appeared to be her son’s father. (See R. at 137-38.) She testified at the hearing that she and her
“husband” had been “common law married” since they were 18 and 20 years old. (R. at 39.)
a slowing of her mental capacities, and she decided to “gracefully bow out of being able to work full
time.” (R. at 43-44.)
In 2012, Plaintiff worked as a part-time merchandiser for five to 20 hours a week in the
greeting card sections of Family Dollar and Dollar General stores. (R. at 40.) She would go in and
remove outdated cards and stock the most recent or holiday-appropriate cards. (Id.) That position
was for a fixed duration and lasted for approximately two months. (Id.) She again worked as a
merchandiser at Family Dollar and Dollar General stores from October 2012 to May 2013. (R. at
41.) She had trouble focusing, suffered from short-term memory loss, and got lost leaving stores.
(Id.) Her mental capacity “deteriorat[ed] at a fast rate.” (Id.) For example, when leaving stores,
she forgot where she was and had to call her husband for directions to her home. (Id.) In March
2013, Plaintiff began to have problems completing her tasks at work. (R. at 48.)
In response to a question related to her “biggest problem” with working eight hours a day,
Plaintiff responded, “[t]he fear of the anxiety attacks; the pain that comes in my lower back; and the
headaches that come unexpectedly; just everything, all of the symptoms that I seem to have
developed from having the aneurysm, tells me I can’t do it anymore.” (R. at 48-49.) She further
explained that she was unable to work because her anxiety and back problem continued to get worse.
(R. at 54.) Additionally, she could only stand and walk for ten minutes at a time, could only sit for
20 minutes out of an eight-hour workday, had a “little bit” of trouble getting along with people, and
suffered from short-term memory issues. (R. at 56-58.)
The VE testified that Plaintiff had past work as a sales person/hardware (279.357-050, light,
semi-skilled, SVP: 4), warehouse worker (922.687-058, medium, unskilled, SVP: 2), and
merchandise clerk (299.367-014, heavy, semi-skilled, SVP: 4). (R. at 59.) The VE noted that
Plaintiff indicated that she practiced sales/hardware and merchandise clerk at a heavy exertional
level, but that based on her education and experience, the positions were typically practiced at
medium and light-to-medium levels, respectively. (Id.)
The ALJ asked the VE to consider a hypothetical person of the same age, education, and
work background as Plaintiff, who had at least moderate difficulties in concentration, persistence,
and pace, such that she was limited to simple, routine, repetitive tasks that were consistent with
unskilled work that was learned by rote, and simple instructions and simple work-related decisions.
(R. at 60.) Additionally, the hypothetical person was limited to few work place changes, little
judgment, and simple and direct supervision and would have at least moderate difficulties in social
functioning. (Id.) She could have no more than occasional contact with the general public and
coworkers. (Id.) The hypothetical person was limited to light work, occasional lifting and carrying
20 pounds, frequently lifting and carrying 10 pounds, standing and walking with normal breaks for
about six hours in an eight-hour workday, sitting with normal breaks for about six hours in an eighthour workday. (Id.) She had no limitations with regard to pushing, pulling, or operation of hand
and foot controls, and she was able to occasionally climb ramps and stairs, balance, stoop, kneel,
and crouch. (Id.) The hypothetical person could not climb ladders, ropes, or scaffolds, and she was
required to avoid even moderate exposure to hazards, moving machinery or unprotected heights, and
commercial driving. (Id.)
The ALJ then asked the VE whether the hypothetical person could engage in any of
Plaintiff’s past work, and the VE said she could not. (Id.) The VE opined that the hypothetical
person could work as a laundry worker (302.685-010, light, unskilled, SVP: 2) with 123,600 in the
national economy and 10,500 in Texas; a ticketer (229.587-018, light, unskilled, SVP: 2) with
213,000 in the national economy and 16,200 in Texas; and a mail clerk (209.687-026, light,
unskilled, SVP: 2) with 70,000 in the national economy and 4,500 in Texas. (R. at 61.) Her
testimony was consistent with the Dictionary of Occupational Titles (DOT). (Id.)
The ALJ asked the VE to next assume the hypothetical person could lift and carry less than
10 pounds, stand and walk for less than one hour in an eight-hour workday, and sit for less than two
hours in an eight-hour workday. (Id.) The ALJ then asked whether the hypothetical person could
perform any of the previously described jobs or any other full-time competitive employment. (Id.)
The VE opined that the hypothetical person could not. (Id.) It would be difficult for the
hypothetical person to maintain competitive employment if she was not at her work station at least
90 percent of the time, or if she missed two or more days per month. (R. at 62.)
The ALJ’s Findings
The ALJ issued his decision denying benefits on July 25, 2014. (R. at 18-29.) At step one,8
he found that Plaintiff had not engaged in substantial gainful activity since December 10, 2011, the
alleged onset date. (R. at 20.) At step two, he found that she had the severe impairments of
degenerative disc disease of spine, basilar aneurysm status post coiling, headaches, affective
disorder, anxiety disorder, and cognitive disorder not otherwise specified. (Id.) Despite the
impairments, at step three, he found that she had no impairment or combination of impairments that
met or equaled the severity of one of the impairments listed in the social security regulations. (R.
Next, the ALJ determined that Plaintiff had the RFC to perform light work as defined in 20
The five-step analysis used to determine whether a claimant is disabled under the Social Security Act is described
CFR 404.1567(b) and 416.967(b) in that she could lift and/or carry 20 pounds occasionally and 10
pounds frequently, stand/walk and sit for six hours of an eight-hour workday, could perform simple,
routine tasks with no more than occasional contact with the general public and coworkers, no more
than occasional climbing of ramps and stairs, but no climbing of ladders, ropes, or scaffolds. (R.
at 22.) Additionally, she must avoid exposure to hazardous moving machinery, unprotected heights,
and no commercial driving. (Id.)
At step four, the ALJ found that Plaintiff could not perform her past relevant work. (R. at
27.) The ALJ continued to step five and found that transferability of job skills was not material to
the determination of disability because use of the Medical-Vocational Rules as a framework
supported a finding that she was not disabled, whether or not she had transferrable job skills. (R.
at 28.) Considering her age, education, work experience, and RFC, the ALJ found there were jobs
in significant numbers in the national economy that she could perform. (Id.) Accordingly, the ALJ
determined that Plaintiff had not been under a disability, as defined under the Social Security Act,
from December 10, 2011, the alleged onset date, through July 25, 2014, the date of his decision. (R.
II. LEGAL STANDARDS
Judicial review of the Commissioner’s denial of benefits is limited to whether the
Commissioner’s position is supported by substantial evidence and whether the Commissioner
applied proper legal standards in evaluating the evidence. Greenspan v. Shalala, 38 F.3d 232, 236
(5th Cir. 1994); 42 U.S.C. § 405(g). “Substantial evidence is that which is relevant and sufficient
for a reasonable mind to accept as adequate to support a conclusion; it must be more than a scintilla,
but it need not be a preponderance.” Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995) (quoting
Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992)). In applying the substantial evidence
standard, the reviewing court does not reweigh the evidence, retry the issues, or substitute its own
judgment, but rather, scrutinizes the record to determine whether substantial evidence is present.
Greenspan, 38 F.3d at 236. A finding of no substantial evidence is appropriate only if there is a
conspicuous absence of credible evidentiary choices or contrary medical findings to support the
Commissioner’s decision. Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988).
The scope of judicial review of a decision under the supplemental security income program
is identical to that of a decision under the social security disability program. Davis v. Heckler, 759
F.2d 432, 435 n.1 (5th Cir. 1985). Moreover, the relevant law and regulations governing the
determination of disability under a claim for disability insurance benefits are identical to those
governing the determination under a claim for supplemental security income. Id. Thus, the Court
may rely on decisions in both areas without distinction in reviewing an ALJ’s decision. Id. at 436
To be entitled to social security benefits, a claimant must prove that he or she is disabled as
defined by the Social Security Act. Leggett, 67 F.3d at 563-64. The definition of disability under
the Social Security Act is “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.” 42
U.S.C. § 423(d)(1)(A). When a claimant’s insured status has expired, the claimant “must not only
prove” disability, but that the disability existed “prior to the expiration of [his or] her insured status.”
Anthony, 954 F.2d at 295. An “impairment which had its onset or became disabling after the special
earnings test was last met cannot serve as the basis for a finding of disability.” Owens v. Heckler,
770 F.2d 1276, 1280 (5th Cir. 1985).
The Commissioner utilizes a sequential five-step analysis to determine whether a claimant
An individual who is working and engaging in substantial gainful activity
will not be found disabled regardless of medical findings.
An individual who does not have a “severe impairment” will not be found to
An individual who “meets or equals a listed impairment in Appendix 1” of
the regulations will be considered disabled without consideration of
If an individual is capable of performing the work he has done in the past, a
finding of “not disabled” must be made.
If an individual’s impairment precludes him from performing his past work,
other factors including age, education, past work experience, and residual
functional capacity must be considered to determine if work can be
Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991) (summarizing 20 C.F.R. § 404.1520(b)-(f)
(currently 20 C.F.R. § 404.1520(a)(4)(i)-(v) (2012)). Under the first four steps of the analysis, the
burden lies with the claimant to prove disability. Leggett, 67 F.3d at 564. The analysis terminates
if the Commissioner determines at any point during the first four steps that the claimant is disabled
or is not disabled. Id. Once the claimant satisfies his or her burden under the first four steps, the
burden shifts to the Commissioner at step five to show that there is other gainful employment
available in the national economy that the claimant is capable of performing. Greenspan, 38 F.3d
at 236. This burden may be satisfied either by reference to the Medical-Vocational Guidelines of
the regulations or by expert vocational testimony or other similar evidence. Fraga v. Bowen, 810
F.2d 1296, 1304 (5th Cir. 1987). After the Commissioner fulfills this burden, the burden shifts back
to the claimant to show that he or she cannot perform the alternate work. Perez v. Barnhart, 415
F.3d 457, 461 (5th Cir. 2005). “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.” Loveland v. Bowen, 813 F.2d 55,
58 (5th Cir. 1987).
Plaintiff raises the following issues for review:
(a) In rejecting the medical opinion of Ms. Norris’s longtime treating
neurologist (Dr. Martin), did the ALJ reversibly err by ignoring the six
factors that ALJs must apply when weighing medical opinions?
(b) In September 2013, Dr. Martin opined that Ms. Norris is currently
disabled, would remain so for “more than 6 months,” and that her disability
should not be declared to beat an until such time as she is “released by a
psychiatrist.” Is the ALJ’s sole basis for discrediting all Dr. Martin’s
conclusions – that he “deferred to another specialty” – “good cause” for
rejecting his conclusion that she is currently disabled?
(a) The regulations endorse two kinds of testing in cases of “organic mental
disorders:” neuropsychological testing and intelligence testing. Given that
SAHs cause significant cognitive disability in about 50% of cases, did the
ALJ breach his duty to develop the evidence fully and fairly by failing to
obtain either kind of testing?
(b) The evidence that Ms. Norris suffered a subarachnoid hemorrhage (SAH)
is overwhelming, but the ALJ did not find that she did. He found that she had
a “basilar aneurysm status post coiling,” which is an aneurysm that is
successfully coiled in order to prevent rupturing. Is this finding supported by
(c) The records from Plaintiff’s October 2009 hospitalization, which the
Decision does not assess or mention, are rich with objective data showing
that Ms. Norris’s SAH caused more serious brain injury than the ALJ
understood. These include imaging studies confirming cerebral edema, a
known predictor of cognitive injury at disabling levels. Under the
circumstances here – and given the ALJ’s aggressive use of his own
layman’s intuition in discounting the opinions of qualified physicians - does
this omission lead to the conclusion that the Decision fails to build the
required “accurate and logical bridge” between the evidence and the ALJ’s
(d) By manhandling the medical opinion evidence – i.e., failing to weigh the
opinions of Drs. Holm and Thompson at all and rejecting the opinions of the
two treating doctors (Drs. Khan and Martin) -- and assessing specific mental
limitations in the RFC finding that no doctor endorses -- did the ALJ run
afoul of the rule of Ripley v. Chater?
Endovascular coiling fails in more than 25% of cases, leading to re-bleeding
and headache, a dire medical emergency. Ms. Norris gets headaches,
sometimes as many as four per week. They frighten her. The ALJ also found
that she has an anxiety disorder, a depressive disorder, and a cognitive
disorder, all at “severe” levels. She testified that when a headache hits, she
must take a rest break of up to two hours in order to seclude herself, lie
down, and take a Tramadol to ensure that it goes away as soon as possible.
She testified that, if she cannot do this (or if the headache does not abate),
she can become debilitated by panic. The RFC finding does not allow for
unscheduled breaks. Not ever. Given the ALJ’s oddly harsh position on this
issue, does it warrant remand …
(a) … that the Decision does not contain any form of any of the
words “break” or “seclude” or “rest” or “rest period” or “lie down,”
but depicts Ms. Norris’s headaches as though they always abate after
one to two hours due to medication alone?
(b) … that the “more detailed assessment” of mental limitations
required by SSR 96-8p is missing, such that one cannot tell how, if
at all, the ALJ intended to accommodate her headaches in the RFC
(c) … that the ALJ failed to weigh (or mention) the medical opinion
by the state-agency psychiatrist (Dr. Thompson), concluding that Ms.
Norris needs to take rest periods to quell work interruptions from
psychologically based symptoms?
(d) … that, despite the synergistic way that her SAH-post-coiling +
headaches + mental disorders make each other worse than each
would be in isolation, the ALJ failed to “specifically discuss the
interaction or cumulation of all the claimant’s medical problems,” as
required by Scott, Strickland, Loza, and a host of other cases?
(e) … that the sole paragraph the ALJ devoted to headaches “cherry
picks” and misdescribes the evidence he purported to rely on, and it
knocks down a “straw man” by pretending that Ms. Norris claims to
have “intractable migraines”? (She does not.)
The Decision finds that Ms. Norris’s capacity for standing, walking and
sitting is 6 hours per day, many multiples of the “20 minutes” her
primary-care doctor (Dr. Khan) has estimated. The ALJ’s explanation
includes the following flatly incorrect statement: “The claimant has not been
referred for pain management.” Does his further statement that “one might
expect [pain management referral] if her condition were actually as serious
as she alleges” show that his misunderstanding prejudiced Ms. Norris?
(doc. 13 at 6-8.)
Plaintiff appears to argue that the ALJ made an improper credibility determination that was
not supported by substantial evidence. (See doc. 13 at 30-33, 38-41.)
The version of Social Security Ruling: SSR 96-7p in effect at the time of the ALJ’s decision
sets forth a two-step process for evaluating a claimant’s subjective complaints. SSR 96-7p, 1996
WL 374186, at *2 (S.S.A. July 2, 1996).10 First, the ALJ must consider whether the claimant had
a medically determinable impairment that could reasonably be expected to produce the alleged
symptoms. Id. Once such an impairment is shown, the ALJ must evaluate the intensity, persistence,
and limiting effects of the alleged symptoms to determine the extent to which they limit the
individual’s ability to do basic work activities. Id. If the claimant’s statements concerning the
intensity, persistence, or limiting effects of pain or other symptoms are not substantiated by
objective medical evidence, the ALJ must make a credibility finding regarding the claimant’s
Because it impacts Plaintiff’s later issues, this issue is first.
Effective March 16, 2016, the Social Security Administration eliminated “use of the term ‘credibility’ from [its]
sub-regulatory policy,” clarifying “that subjective symptom evaluation is not an examination of an individual's
character.” SSR 16-3p, 2016 WL 1020935, at *1 (S.S.A. Mar. 16, 2016). When the ALJ issued the decision here, SSR
96-7p was the relevant social security ruling and specifically used the term “credibility.” SSR 96-7P, 1996 WL 374186,
at *7 (S.S.A. July 2, 1996). This credibility finding is properly analyzed under SSR 96-7p. See Mayberry v. Colvin, No.
CV G-15-330, 2016 WL 7686850, at *5 (S.D. Tex. Nov. 28, 2016), adopted by 2017 WL 86880 (S.D. Tex. Jan. 10,
2017) (noting that “[b]ecause the text of SSR 16–3p does not indicate the SSA's intent to apply it retroactively, the Court
would be disinclined to do so”); see also Buchanan v. Berryhill, No. 3:15-CV-3287-BH, 2017 WL 998513, at *9 n.4
(N.D. Tex. Mar. 14, 2017) (same). Even if SSR 16-3p applied retroactively, however, the outcome would not differ.
statements. Id.; Falco v. Shalala, 27 F.3d 160, 164 (5th Cir. 1994) (citing Scharlow v. Schweiker,
655 F.2d 645, 648-49 (5th Cir. 1985)).
The ALJ’s credibility determination must be based on consideration of the entire record,
including medical signs and laboratory findings, and statements by the claimant and her treating or
examining sources concerning the alleged symptoms and their effect. SSR 96-7p, 1996 WL 374186,
at *2. The ALJ must also consider a non-exclusive list of seven relevant factors in assessing the
credibility of a claimant’s statements:
1. the claimant’s daily activities;
2. the location, duration, frequency, and intensity of pain or other symptoms;
3. factors that precipitate and aggravate symptoms;
4. the type, dosage, effectiveness, and side effects of any medication taken to
alleviate pain or other symptoms;
5. treatment, other than medication, for relief of pain or other symptoms;
6. measures other than treatment the claimant uses to relieve pain or other symptoms
(e.g., lying flat on his or her back);
7. and any other factors concerning the claimant’s functional limitations and
restrictions due to pain or other symptoms.
Id. at *3.
Although the ALJ must give specific reasons for his credibility determination, “neither the
regulation nor interpretive case law requires that an ALJ name, enumerate, and discuss each factor
in outline or other rigid, mechanical form. It suffices when the administrative decision is sufficiently
specific to make clear that the regulatory factors were considered.” Prince v. Barnhart, 418 F. Supp.
2d 863, 871 (E.D. Tex. 2005). Moreover, the Fifth Circuit has explicitly rejected the requirement
that an ALJ “follow formalistic rules” when assessing a claimant’s subjective complaints. Falco,
27 F.3d at 164. The ALJ’s evaluation of the credibility of subjective complaints is entitled to
judicial deference. See Carrier v. Sullivan, 944 F.2d 243, 247 (5th Cir. 1991) (per curiam). The ALJ
is in the best position to assess a claimant’s credibility, since he “enjoys the benefit of perceiving
first-hand the claimant at the hearing.” Falco, 27 F.3d at 164 n.18.
Here, ALJ acknowledged that Plaintiff’s medically determinable impairments could be
expected to cause some of her alleged symptoms, but he concluded that her testimony was not fully
credible. (R. at 25.) He expressly noted the credibility factors listing in SSR 96-7p and addressed
several of them, although not in a formalistic fashion. (R. at 22-27.) He discussed Plaintiff’s past
work, the diagnoses of her doctors and their related treatment, and the repeated diagnostic tests.
(See R. at 25-28.) He also noted that she had never undergone back surgery, and that it had never
been assessed as warranted by any treating or examining medical source.11 (Id.) He compared
Plaintiff’s testimony concerning her impairments and the impact on her ability to work to the
objective medical findings, her history of medical treatment, and her activities of daily living. (R.
The ALJ’s discussion shows that he relied primarily on the medical evidence of record to
find Plaintiff not credible. Although not in a formalistic fashion, he also considered the factors for
determining credibility and adequately explained his reasons for rejecting her subjective complaints.
The ALJ’s decision is sufficiently specific to clearly show that the regulatory factors were
considered. See Prince, 418 F. Supp. 2d at 871. Accordingly, there is substantial evidence to
support his determination. See Falco, 27 F.3d at 164. Remand is not required on this issue.
The ALJ also noted that Plaintiff had not been referred for pain management, “which one might expect if her condition
were actually as serious as she alleges.” (R. at 26.) The Commissioner concedes that there were, in fact, references in
the record to pain management treatment. (doc. 20 at 33.) The ALJ clearly relied on the other factors in making his
credibility determination, so this error was harmless.
Plaintiff contends that the ALJ erred by not including her subarachnoid hemorrhage as a
severe impairment at step two. (See doc. 13 at 22-24.)
At step two of the sequential evaluation process, the ALJ “must consider the medical severity
of [the claimant’s] impairments.” 20 C.F.R. § 404.1520(a)(4)(ii),(c) (2012). To comply with this
regulation, the ALJ “must determine whether any identified impairments are ‘severe’ or ‘not
severe.’” Herrera v. Comm’r of Soc. Sec., 406 F. App’x 899, 903 (5th Cir. 2010) (per curiam).
Under the Commissioner’s regulations, a severe impairment is “any impairment or combination of
impairments which significantly limits [a claimant’s] physical or mental ability to do basic work
activities.” 20 C.F.R. § 404.1520(c). The Fifth Circuit has held that a literal application of this
regulation would be inconsistent with the Social Security Act because the regulation includes fewer
conditions than indicated by the statute. Stone v. Heckler, 752 F.2d 1099, 1104-05 (5th Cir. 1985).
Accordingly, in the Fifth Circuit, an impairment is not severe “only if it is a slight abnormality
having such minimal effect on the individual that it would not be expected to interfere with the
individual’s ability to work.” Id. at 1101. In other words, “the claimant need only . . . make a de
minimis showing that her impairment is severe enough to interfere with her ability to do work.”
Anthony v. Sullivan, 954 F.2d 289, 294 n.5 (5th Cir. 1992) (citation omitted). When determining
whether a claimant’s impairments are severe, an ALJ is required to consider the combined effects
of all physical and mental impairments regardless of whether any impairment, considered alone,
would be of sufficient severity. Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000) (citing 20 C.F.R.
§ 404.1523) (finding that an ALJ is required to consider the combined effects of all physical and
mental impairments regardless of whether any impairment, considered alone, would be of sufficient
severity). The claimant has the burden to establish that his impairments are severe. See Bowen v.
Yukert, 482 U.S. 137, 146 n.5 (1987).
In this case, the ALJ did not explain why he only found degenerative disc disease of spine,
basilar aneurysm status post coiling, headaches, affective disorder, anxiety disorder, and cognitive
disorder not otherwise specified as Plaintiff’s only severe impairments at step two. (See R. at 2021.)
Plaintiff argues that her medical records “are rich with signs that her [subarachnoid
hemorrhage] was of greater than average severity,” and that she “is afflicted with ailments that
interact with each other in pernicious ways, such that their cumulative effect is worse than one
would expect by considering each separately.” (Id. at 22, 34.) The Commissioner responds that
the ALJ properly considered the appropriate medical evidence, found that Plaintiff had the severe
impairments of degenerative disc disease of spine, basilar aneurysm status post coiling, headaches,
affective disorder, anxiety disorder, and cognitive disorder not otherwise specified, and then
proceeded beyond step two. (See doc. 20 at 20.) She also argues that because the ALJ proceeded
beyond step two, Plaintiff cannot demonstrate prejudice, even if the subarachnoid hemorrhage
should have been considered as a severe impairment. (See id.)
The Fifth Circuit has stated that a failure to make a severity finding at step two is not
reversible error when an ALJ continues with the sequential evaluation process. Herrera, 406 F.
App’x at 903 (citing Adams v. Bowen, 833 F.2d 509, 512 (5th Cir. 1987) (noting the ALJ’s failure
to make a severity finding at step two was not a basis for remand where the ALJ proceeded to later
steps of the analysis); Mays v. Bowen, 837 F.2d 1362, 1365 (5th Cir. 1988) (per curiam) (“[I]f the
ALJ proceeds past the impairment step in the sequential evaluation process the court must infer that
a severe impairment was found.”)).
Here, at step three, the ALJ considered the paragraph B criteria and affirmed his agreement
with Dr. Thompson’s Psychiatric Review Technique assessment.12 (R. at 21.) He referred to his
discussion of the medical evidence in the RFC section of the decision and proceeded beyond step
two. (R. at 21-29.) In determining Plaintiff’s RFC, the ALJ considered all of the medical evidence,
including evidence related to her basilar aneurysm status post coiling and medical records from
Texas Neurology, which addressed her aneurysm in detail. (See R. at 22-27.) His decision clearly
notes that Plaintiff’s aneurysm “ruptured” in 2009, and that she received treatment. (See id.)
Accordingly, even if the ALJ erred by finding that Plaintiff’s only severe medical impairments were
degenerative disc disease of spine, basilar aneurysm status post coiling, headaches, affective
disorder, anxiety disorder, and cognitive disorder not otherwise specified, the error was harmless
because he proceeded beyond step two.
Plaintiff contends that the ALJ erred by failing to give controlling weight to her treating
physicians’ medical opinions. (doc. 13 at 15, 39.)
The Commissioner is entrusted to make determinations regarding disability, including
weighing inconsistent evidence. 20 C.F.R. § 404.1529(b). Every medical opinion is evaluated
regardless of its source, but the Commissioner generally gives greater weight to opinions from a
treating source. Id. § 404.1527(c)(2). A treating source is a claimant’s “physician, psychologist,
or other acceptable medical source” who provides or has provided a claimant with medical treatment
or evaluation, and who has or has had an ongoing treatment relationship with the claimant. Id. §
The ALJ does not refer to Dr. Thompson by name, but he states his “agreement with the prior determination of the
non-examining consultant of the State agency that no listing is met or equaled,” which corresponds to her Psychiatric
Review Technique assessment. (See R. at 21, 296-308.)
Because Plaintiff’s first and fourth issues address the weight given to the medical opinions of Drs. Martin and Khan,
(see doc. 13 at 15, 38-41), they are considered together.
404.1502. When “a treating source’s opinion on the issue(s) of the nature and severity of [a
claimant’s] impairment(s) is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence,” the Commissioner
must give such an opinion controlling weight. Id. § 404.1527(c)(2). If controlling weight is not
given to a treating source’s opinion, the Commissioner considers six factors in deciding the weight
given to each medical opinion: (1) whether the source examined the claimant or not; (2) whether the
source treated the claimant; (3) the medical signs and laboratory findings that support the given
opinion; (4) the consistency of the opinion with the record as a whole; (5) whether the opinion is
made by a specialist or non-specialist; and (6) any other factor which “tend[s] to support or
contradict the opinion.” See id. § 404.1527(c)(1)-(6).
While an ALJ should afford considerable weight to opinions and diagnoses of treating
physicians when determining disability, sole responsibility for this determination rests with the ALJ.
Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000). If evidence supports a contrary conclusion, an
opinion of any physician may be rejected. Id. A treating physician’s opinion may also be given
little or no weight when good cause exists, such as “where the treating physician’s evidence is
conclusory, is unsupported by medically acceptable clinical, laboratory, or diagnostic techniques,
or is otherwise unsupported by the evidence.” Id. at 455-56. Nevertheless, “absent reliable medical
evidence from a treating or examining physician controverting the claimant’s treating specialist, an
ALJ may reject the opinion of the treating physician only if the ALJ performs a detailed analysis of
the treating physician’s views under the criteria set forth in [then] 20 C.F.R. § 404.1527(d)(2).” Id.
at 453. A detailed analysis is unnecessary, however, when “there is competing first-hand medical
evidence and the ALJ finds as a factual matter that one doctor’s opinion is more well-founded than
another” or when the ALJ has weighed “the treating physician’s opinion on disability against the
medical opinion of other physicians who have treated or examined the claimant and have specific
medical bases for a contrary opinion.” Id. at 458.
Here the ALJ identified the following severe impairments at step two: degenerative disc
disease of spine, basilar aneurysm status post coiling, headaches, affective disorder, anxiety
disorder, and cognitive disorder not otherwise specified. (R. at 20.) At step three, he found that
Plaintiff did not meet or medically equal Listings 12.04 or 12.06, and before reaching step four the
ALJ determined Plaintiff’s RFC. (See R. at 21-27.) In making his decision, the ALJ expressly
considered the medical opinions of Drs. Martin and Khan, but found that their opinions were not
substantially supported by the evidence in the record.14 (R. at 23, 26-27.) The ALJ identified
inconsistencies in their medical opinions and the record as a whole, and their lack of references to
narrative treatment notes. (R. at 27.) He also faulted their reliance on subjective reports from
Plaintiff, whom he found not fully credible, noting that “objective diagnostic scans and tests have
revealed no acute intracranial pathology” and her brain MRI was unremarkable. (R. at 25-27.) He
also noted Dr. Martin’s reliance on another specialist, and faulted Dr. Khan’s medical opinions
because “the disabling degree of symptomatology provided in the opinion statement [was]
inconsistent with [his] treatment notes” and that “[t]here [was] no reference in the narrative
treatment notes to limited dexterity, limited range of motion, memory issues, or side effects from
medical medications noted in the opinion.” (R. at 27.) The ALJ gave their opinions “little weight.”
(R. at 27.)
Because the ALJ relied on competing first hand medical evidence when he declined to give
The Commissioner does not disagree that Drs. Martin and Khan were Plaintiff’s treating physicians. (See doc. 20 at
their medical opinions controlling weight, his decision was based on substantial evidence, and he
was not required to conduct the analysis in sections 404.1527 and 416.1927.15 See Belk v. Colvin,
648 F. App’x 452, 455 (5th Cir. 2016) (per curiam) (“Conflicts of evidence are for the
Commissioner to resolve; in applying the substantial evidence standard, we do not reweigh the
evidence, but merely determine whether the Commissioner’s decision is supported by substantial
evidence.”) (citing Perez, 415 F.3d at 461); see, e.g., Wells v. Colvin, No. 3:15-CV-3759-BK, 2016
WL 4920289, at *4 (N.D. Tex. Sept. 15, 2016) (affirming the ALJ’s decision because “the doctor’s
opinion on the checklist form was inconsistent with and unsupported by the other substantial
evidence of record, including [her] own treatment notes”). Remand is therefore not required on this
Plaintiff contends that ALJ committed legal error when he failed to consider the mental RFC
assessment of Dr. Thompson. (doc. 13 at 28-29.)
State agency medical consultants (SAMCs), such as Dr. Thompson, are considered experts
in Social Security disability determination, and their opinions may be entitled to great weight if they
are supported by the evidence. Hardin v. Astrue, No. 3:10-CV-1343-B, 2011 WL 1630902, at *7
(N.D. Tex. Mar. 31, 2011), adopted by 2011 WL 1633132 (N.D. Tex. Apr. 29, 2011). Although the
ALJ is solely responsible for assessing the claimant’s RFC, he must consider any opinion by an
SAMC regarding the claimant’s RFC in making this assessment. SSR 96-6p, 1996 WL 374180, at
The Commissioner does not dispute that one of the ALJ’s apparent reasons for giving the medical opinions of Dr.
Khan little weight, i.e., that Plaintiff was not referred for pain management, was factually incorrect. (See doc. 20 at 33.)
Because the ALJ appeared to rely on other reasons for giving Dr. Khan’s medical opinions little weight, including “no
reference to narrative treatment notes,” “the disabling degree of symptomatology provided in the opinion statement [was]
inconsistent with [his] treatment notes,” and “[t]here [was] no reference in the narrative treatment notes to limited
dexterity, limited range of motion, memory issues, or side effects from medical medications noted in the opinion,” any
reliance by the ALJ on the belief that Plaintiff had not been referred for pain management was harmless error.
*4 (S.S.A. July 2, 1996). “RFC assessments by [SAMCs] . . . are to be considered and addressed
in the [ALJ’s] decision as medical opinions from nonexamining sources about what the individual
can still do despite his or her impairment(s)” and “are to be evaluated considering all of the factors
. . . for considering opinion evidence” outlined in 20 C.F.R. § 404.1527(c). Id. If the ALJ does not
give controlling weight to a treating physician’s opinion, he “must explain in [his] decision the
weight given to the opinions of a [SAMC] . . . as the [ALJ] must do for any opinions from treating
sources, nontreating sources, and other nonexamining source.” 20 C.F.R. §§ 404.1527(e)(2)(ii),
416.927(e)(2)(ii); Alejandro v. Barnhart, 291 F. Supp. 2d 497, 515 (S.D. Tex. 2003); see also 20
C.F.R. § 404.1527(c) (“Unless we give a treating source’s opinion controlling weight under
paragraph (c)(2) of this section, we consider all of the following factors in deciding the weight we
give to any medical opinion.”).
Here, the ALJ’s RFC assessment gives little weight to Drs. Martin and Khan, Plaintiff’s
treating physicians, (R. at 27), but his narrative discussion lacks an explanation regarding Dr.
Thompson’s mental RFC assessment.16 (See R. at 18-29.) Accordingly, the ALJ’s failure to explain
the weight given to Dr. Thompson’s consultative opinions contravened 20 C.F.R. §§
404.1527(e)(2)(ii) and 404.1527(c) and was legal error. See Webb v. Astrue, No. 408-CV-747-Y,
2010 WL 1644898, at *11 (N.D. Tex. Mar. 2, 2010) (holding that “the ALJ erred by not . . .
specifying the weight he assigned to each [SAMC] opinion”), adopted by 2010 WL 1644697 (N.D.
Tex. Apr. 22, 2010).
The Commissioner argues that this error was harmless because Dr. Thompson’s opinions
were consistent with the ALJ’s RFC assessment. (doc. 20 at 30); see a;sp Alejandro, 291 F. Supp.
2d at 515 (harmless error analysis applies when an ALJ fails to explain the weight given to SAMCs).
The ALJ does clearly weigh the physical RFC assessment of Dr. Wright, however. (R. at 27.)
In the Fifth Circuit, harmless error exists when it is inconceivable that a different administrative
conclusion would have been reached absent the error. Bornette, 466 F. Supp. 2d at 816 (citing
Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003)).
In her mental RFC assessment, Dr. Thompson determined that Plaintiff could understand,
remember, and carry out detailed but not complex instructions, make decisions, attend and
concentrate for extended periods, accept instructions, and respond appropriately to changes in
routine work setting. (R. at 320.) Although he did not expressly consider Dr. Thompson’s RFC
assessment in his decision, the ALJ limited Plaintiff to simple, routine tasks with no more than
occasional contact with the general public and coworkers. (R. at 22.) Likewise, the ALJ’s
hypothetical to the VE specified that the hypothetical person had at least moderate difficulties in
concentration, persistence, and pace, such that she was limited to simple, routine, repetitive tasks
that were consistent with unskilled work that was learned by rote and simple instructions and simple
work-related decision. (R. at 60.) The positions identified by the ALJ in his decision were
unskilled, (R. at 28, 61), so Plaintiff was limited to work which needed little or no judgment to do
simple duties that could be learned on the job in a short period of time, 20 C.F.R. § 404.1568(a)
(defining unskilled work). The ALJ’s RFC assessment was consistent with Dr. Thompson’s medical
opinions, even though he did not expressly consider them in his decision. The error was therefore
harmless. See also Webb, 2010 WL 1644898, at *11 (finding harmless error when the ALJ erred
by not specifying the weight he assigned to each SAMC opinion); Harris v. Colvin, No. 4:14-CV00327-Y-BL, 2015 WL 5319814 (N.D. Tex. Aug. 19, 2015) (reversing because the RFC conflicted
with the state agency psychiatrist’s medical opinions that were not included in the decision), adopted
by 2015 WL 5320080 (N.D. Tex. Sept. 10, 2015). Remand is therefore not required on this basis.
Duty to Develop the Record
Plaintiff next contends that the ALJ failed to develop the record by failing to obtain
neuropsychological testing for Plaintiff. (doc. 13 at 18-19.)
An ALJ has a duty to fully and fairly develop the facts relative to a claim for benefits.
Newton, 209 F.3d at 458 (citing Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995)). When the ALJ
fails in this duty, he does not have before him sufficient facts upon which to make an informed
decision, and his decision is not supported by substantial evidence. Brock v. Chater, 84 F.3d 726,
728 (5th Cir. 1996) (per curiam) (“When a claimant is not represented by counsel, the ALJ owes a
heightened duty to ‘scrupulously and conscientiously probe into, inquire of, and explore for all
relevant facts.’”); Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir. 1984). For this reason, a
reviewing court may reverse the ALJ’s decision if the claimant can show that “(1) the ALJ failed
to fulfill his duty to develop the record adequately and (2) that failure prejudiced the plaintiff.”
Jones v. Astrue, 691 F.3d 730, 733 (5th Cir. 2012).
“The decision to order a consultative examination is within the ALJ’s bailiwick.” Harper
v. Barnhart, 176 F. App’x 562, 566 (5th Cir. 2006) (per curiam). An ALJ must order a consultative
evaluation, however, when it is necessary to enable the ALJ to make the disability determination.
Brock, 84 F.3d at 728 (citing Turner v. Califano, 563 F.2d 669, 671 (5th Cir. 1977) (per curiam)).
A consultative evaluation becomes “necessary” only when the claimant presents evidence sufficient
to raise a suspicion concerning a non-exertional impairment. Jones v. Bowen, 829 F.2d 524, 526
(5th Cir. 1987) (per curiam). Isolated comments without further support by a claimant are
insufficient to raise a suspicion of non-exertional impairment. See Pierre v. Sullivan, 884 F.2d 799,
802-03 (5th Cir. 1989) (per curiam) (holding isolated comments about claimant’s low intelligence
insufficient to raise suspicion that claimant was mentally retarded); Brock, 84 F.3d at 728 (holding
the claimant’s references amounted to isolated comments because he did not mention non-exertional
impairments in his original request for benefits, he never sought medical treatment for such
impairments, and he did not mention these impairments at his hearing). Additionally, when
evidence in the record supports a conclusion that the claimant is not disabled, a consultative exam
is not necessary. Turner, 563 F.2d at 671; see Pierre, 884 F.2d at 802 (“The decision to require such
an examination is within the discretion of the ALJ.”).
Plaintiff argues that the ALJ had a duty to obtain a consultative exam because (1) he found
that she had a cognitive disorder not otherwise specified at the severe level, and (2) “we know” from
a Columbia medical school study that was provided by Plaintiff with her brief to this Court that 50%
of subarachnoid hemorrhage survivors remain permanently disabled because of cognitive
dysfunction. (doc. 13 at 19) (citation omitted). She further argues that this 50% chance is “a nearprobability.”17 (Id.) The Commissioner responds that the record was sufficient for the ALJ to
determine whether Plaintiff was disabled, and that Plaintiff fails to show that the ALJ was under any
obligation to send her for neurological testing. (doc. 20 at 19.)
Plaintiff was represented by counsel at the hearing, so no “heightened duty to scrupulously
and conscientiously explore all relevant facts” arose. Castillo v. Barnhart, 325 F.3d 550, 552-53
(5th Cir. 2003) (per curiam); see, e.g., Isbell v. Colvin, No. 1:14-CV-006-C, 2015 WL 1208122, at
*3 n.1 (N.D. Tex. Mar. 16, 2015) (noting that the ALJ did not have a heightened duty to develop the
record where the claimant was represented by counsel). Additionally, as noted, the burden lies with
Cf. Probability, BLACK’S LAW DICTION (10th ed. 2014) (defining probability as “[s]omthing that is likely.”)(emphasis
the claimant to prove disability. Leggett, 67 F.3d at 564. Although the ALJ determined that Plaintiff
had a cognitive disorder not otherwise specified at the severe level, there is no indication that the
ALJ found the evidence in the record inconclusive or otherwise inadequate to render a decision.
(See R. at 18-29.) For example, the ALJ clearly considered the medical records from Plaintiff’s
consultative psychiatric examination with Dr. Holm as well as the records from Texas Neurology.
(See R. at 24-27.) There is also no evidence that Plaintiff raised the need for an additional
consultative examination at the hearing (where she was represented by counsel) or at any time before
the ALJ rendered his decision. Accordingly, the ALJ did not have a duty to further develop the
record by sending Plaintiff for neuropsychological testing, and remand is not required on this issue.18
Plaintiff contends that the ALJ’s RFC assessment was not supported by substantial evidence.
(doc. 13 at 25-38.)
Residual functional capacity, or RFC, is defined as the most that a person can still do despite
recognized limitations. 20 C.F.R. § 404.1545(a)(1) (2003). The RFC determination is a combined
“medical assessment of an applicant’s impairments with descriptions by physicians, the applicant,
or others of any limitations on the applicant’s ability to work.” Hollis v. Bowen, 837 F.2d 1378,
1386-87 (5th Cir. 1988) (per curiam). The relevant policy interpretation states:
1. Ordinarily, RFC is an assessment of an individual’s ability to do sustained
work-related physical and mental activities 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.
2. The RFC assessment considers only functional limitations and restrictions that
result from an individual’s medically determinable impairment or combination of
Even if the ALJ should have ordered a consultative examination, Plaintiff has not shown that she was prejudiced in
that the additional evidence would have been produced that might have led to a different decision. See Thompson v.
Colvin, No. 4:12-CV-466-Y, 2013 WL 4035229, at *6 (N.D. Tex. Aug. 8, 2013). Any error was therefore harmless.
impairments, including the impact of any related symptoms.
SSR 96-8p, 1996 WL 374184, at *1 (S.S.A. July 2, 1996). The ALJ “is responsible for assessing
the medical evidence and determining the claimant’s residual functional capacity.” Perez v.
Heckler, 777 F.2d 298, 302 (5th Cir. 1985).
Determination of an individual’s RFC should be based on all of the relevant evidence in the
case record, including opinions submitted by treating physicians or other acceptable medical
sources. 20 C.F.R. § 404.1545(a)(3) (2012); SSR 96-8p, 1996 WL 374184, at *1. Every medical
opinion is evaluated regardless of its source, but the Commissioner generally gives greater weight
to opinions from a treating source. 20 C.F.R. § 404.1527(c)(2). A treating source is a claimant’s
“physician, psychologist, or other acceptable medical source” who provides or has provided a
claimant with medical treatment or evaluation, and who has or has had an ongoing treatment
relationship with the claimant. Id. § 404.1502. When “a treating source’s opinion on the issue(s)
of the nature and severity of [a claimant’s] impairment(s) is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence,” the Commissioner must give such an opinion controlling weight. Id. § 404.1527(c)(2).
While an ALJ should afford considerable weight to opinions and diagnoses of treating
physicians when determining disability, sole responsibility for this determination rests with the ALJ.
Newton, 209 F.3d at 455. The ALJ’s RFC decision can be supported by substantial evidence even
if he does not specifically discuss all the evidence that supports his decision, or all the evidence that
he rejected. Falco, 27 F.3d at 164. A reviewing court must defer to the ALJ’s decision when
substantial evidence supports it, even if the court would reach a different conclusion based on the
evidence in the record. Leggett, 67 F.3d at 564. Nevertheless, the substantial evidence review is
not an uncritical “rubber stamp” and requires “more than a search for evidence supporting the
[Commissioner’s] findings.” Martin v. Heckler, 748 F.2d 1027, 1031 (5th Cir. 1984) (citations
omitted). The court “must scrutinize the record and take into account whatever fairly detracts from
the substantiality of the evidence supporting the [ALJ’s] findings.” Id. (citations omitted). Courts
may not re-weigh the evidence or substitute their judgment for that of the Commissioner, however,
and a “no substantial evidence” finding is appropriate only if there is a conspicuous absence of
credible evidentiary choices or contrary medical findings to support the ALJ’s decision. See
Johnson, 864 F.2d at 343 (citations omitted).
Plaintiff argues that the ALJ improperly relied on his own lay opinion to determine the
effects of her mental impairments, citing Ripley v. Chater, 67 F.3d 552 (5th Cir. 1995). (doc. 13 at
In Ripley, the claimant argued that the ALJ failed to develop the record fully and fairly by
finding that he could perform sedentary work even though there was no medical testimony to
support that conclusion. 67 F.3d at 557. The Fifth Circuit noted that although an ALJ should
usually request a medical source statement describing the types of work that the applicant was still
capable of performing, the absence of such a statement did not necessarily make the record
incomplete. Id. Rather, the court had to consider whether there was substantial evidence in the
record to support the ALJ’s decision. Id. The record contained “a vast amount of medical evidence”
establishing that the claimant had a back problem, but it did not clearly establish the effect of that
problem on his ability to work. Id. The ALJ’s RFC determination was therefore not supported by
substantial evidence, so the Fifth Circuit remanded the case with instructions to the ALJ to obtain
a report from a treating physician. Id. at 557-58. Notably, the Fifth Circuit rejected the
Commissioner’s argument that the medical evidence discussing the extent of the claimant’s
impairment substantially supported the ALJ’s RFC assessment, finding that it was unable to
determine the effects of the claimant’s condition on his ability to work absent reports from qualified
medical experts. Id. at 558 n.27.
The Commissioner argues that the ALJ accounted for Plaintiff’s impairments that were
corroborated by the medical evidence of the record and dated within the relevant time period. (doc.
20 at 26-27.) After making a credibility analysis, the ALJ considered the medical evidence and
opinions of Drs. Martin, Khan, Holm,19 and Wright. (See R. at 22-27.) He gave the opinions of Drs.
Martin and Khan “little weight,” and the opinions of Dr. Wright weight “to a degree that is only
consistent to the assessed residual functional capacity in this decision.”20 (Id.) He also explained:
Based upon the record in its entirety, including her allegations of anxiety and other
symptomatology, the undersigned finds that the claimant has remained capable of
performing unskilled work activity as long as she avoids more than occasional
contact with coworkers and the general public. These functional limitations are of
a degree that formally establishes the claimant’s mental impairments as severe, as
was considered above.
(R. at 26) (internal citation omitted). Because the RFC was based on specific medical opinions, the
ALJ did not rely on his own lay opinion in violation of Ripley.
Even if the ALJ relied on his own lay opinion, however, any error was harmless. As noted,
“[p]rocedural perfection in administrative proceedings is not required,” and a court “will not vacate
a judgment unless the substantial rights of a party have been affected,” so Plaintiff must show she
was prejudiced by the ALJ’s failure to rely on medical opinion evidence in assessing her RFC. See
Dr. Holm was not actually identified by name in the decision, but he was identifiable through exhibit numbers. (See
R. at 24.)
Dr. Wright was not actually identified by name in the decision, but he was identifiable through exhibit numbers. (See
R. at 27.)
Mays, 837 F.2d at 1364. To establish prejudice, Plaintiff must show that the ALJ’s failure to rely
on a medical opinion as to the effects her impairments had on her ability to work casts doubt onto
the existence of substantial evidence supporting her disability determination. See McNair v.
Comm’r of Soc. Sec. Admin., 537 F. Supp. 2d 823, 837 (N.D. Tex. 2008) (“Procedural errors in the
disability determination process are considered prejudicial when they cast doubt onto the existence
of substantial evidence in support of the ALJ’s decision.”) (citing Morris v. Bowen, 864 F.2d 333,
335 (5th Cir. 1988) (per curiam)); Frank, 326 F.3d at 622 (applying harmless error analysis where
the ALJ “seem[ed] to draw his own medical conclusions from some of the [medical] data, without
relying on a medical expert’s help”).
As previously noted, the RFC was consistent with Dr. Thompson’s mental RFC assessment.
Additionally, in his physical RFC assessment, Dr. Wright determined that Plaintiff could
occasionally lift and/or carry 20 pounds, frequently lift and/or carry 10 pounds, stand and/or walk
for a total of six hours in an eight-hour workday, sit for a total of six hours in an eight-hour workday,
and push and/or pull without limitations. (R. at 311.) He further opined that she could occasionally
balance, stoop, kneel, crouch, crawl, and climb ramps and stairs, but she could never climb ladders,
ropes, or scaffolds. (R. at 312.) Although the ALJ did not expressly state what weight he gave to
Dr. Wright’s medical opinions, he limited Plaintiff to the physical restrictions identified in Dr.
Wright’s physical RFC assessment. (See R. at 22.) Because Plaintiff’s RFC was consistent with the
mental and physical RFC assessments of the SAMCs, any error was harmless. Cf. Laws v. Colvin,
No. 3:14-CV-3683-BH, 2016 WL 1170826, at *10 (N.D. Tex. Mar. 25, 2016) (reversing and
remanding for further proceedings for lack of substantial evidence because the ALJ’s failure to rely
on a medical opinion in determining the plaintiff’s RFC). Accordingly, even if the ALJ relied on
his own lay opinion, remand is not required on this issue.
Plaintiff next argues that the ALJ failed to set forth a more detailed assessment of her mental
limitations as required by SSR 96-8p. (doc. 13 at 28-30.) She is essentially arguing that the ALJ
erred by failing to perform a function-by-function analysis of her work limitations. See Newbauer
v. Colvin, No. 3:14-CV-3548-BH, 2016 WL 1090665, at *12 (N.D. Tex. Mar. 21, 2016).
When a claimant is found to have a mental impairment, the ALJ must determine its severity
by evaluating “the degree of functional loss resulting from the impairment in four separate areas
deemed essential for work.” Boyd v. Apfel, 239 F.3d 698, 705 (5th Cir. 2001) (citing 20 C.F.R. §
404.1520a(b)(3)). These areas are: (1) activities of daily living; (2) social functioning; (3)
concentration, persistence, and pace; and (4) episodes of decompensation.21 20 C.F.R. §
404.1520a(c)(3) (2011); 20 C.F.R. Pt. 404, Subpt. P. App. 1, § 12.00C. This rating process is known
as “the psychiatric review technique” or the “technique.” Owen v. Astrue, No. 3:10-CV-1439-BH,
2011 WL 588048, at *14 (N.D. Tex. Feb. 9, 2011). If the mental impairment is severe but does not
meet or medically equal a listed impairment, the ALJ must conduct an RFC assessment. 20 C.F.R.
§ 404.1520a(d)(3); Boyd, 239 F.3d at 705.
Before making an RFC determination, the ALJ must perform a function-by-function
assessment of the claimant’s capacity to perform sustained work-related physical and mental
activities “based upon all of the relevant evidence” and taking into account “both exertional and
nonexertional factors.” Myers v. Apfel, 238 F.3d 617, 620 (5th Cir. 2001) (per curiam) (citing SSR
These four functional areas are known as the “paragraph B criteria.” See 20 C.F.R. Pt. 404, Subpt. P, App. 1 §
12.00C. The first three are rated on a five-point scale, as either none, mild, moderate, marked, or extreme, and the fourth
is rated on a four-point scale, ranging from “none” to “four or more episodes.” See 20 C.F.R. § 404.1520a(c)(4) (2012).
If the first three functional areas are rated as “none” or “mild” and the fourth area is rated as “none,” the impairment will
generally be found not to be severe. Id. § 404.1520a(d)(1).
96-8P, 1996 WL 374184, at *3-6 (S.S.A. July 2, 1996)). “While the ALJ is not required to use the
exact language from his psychiatric review technique, he must consider all of [the claimant’s]
limitations, including those found in the technique.” Owen, 2011 WL 588048, at *14. Specifically,
the ALJ must itemize the “various functions contained in paragraph[ ] B” and express them “in terms
of work-related mental activities.” SSR 96-8P, 1996 WL 374184, at *5-6. These activities “include
the abilities to: understand, carry out, and remember instructions; use judgment in making
work-related decisions; respond appropriately to supervision, co-workers and work situations; and
deal with changes in a routine work setting.” Id. at *6; see also 20 C.F.R. § 404.1545(c) (2012).
“[W]ithout 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” at step four or perform other “types of work” at step five. SSR 96-8P, 1996 WL 374184, at
*3-4; accord Myers, 238 F.3d at 620.
Notably, even if the ALJ fails to conduct a
function-by-function analysis, he satisfies this requirement if he bases his RFC assessment, at least
in part, on a state medical examiner’s report containing a function-by-function analysis. Beck v.
Barnhart, 205 F. App’x 207, 213-14 (5th Cir. 2006) (per curiam); Onishea v. Barnhart, 116 F.
App’x 1 (5th Cir. 2004) (per curiam).
Here, before making his RFC determination, the ALJ expressly considered the paragraph B
criteria and affirmed his agreement with the Psychiatric Review Technique completed by Dr.
Thompson and her paragraph B assessment.22 (R. at 21, 296-308). Additionally, as previously
noted, it appears that the ALJ based Plaintiff’s mental RFC on the mental RFC assessment
completed by Dr. Thompson, who also completed the Psychiatric Review Technique for Plaintiff.
As previously noted, the ALJ does not refer to Dr. Thompson by name, but he appears to refer to her Psychiatric
Review Technique. (See R. at 21, 296-308) (“After a review of the entire record, the undersigned is in agreement with
the prior determination of the non-examining consultant of the State agency that no listing is met or equaled.”).
Accordingly, the ALJ conducted a function-by-function analysis, considered the paragraph B
criteria, and based Plaintiff’s RFC, in part, on the report of Dr. Thompson. Remand is therefore not
required on this basis.
Plaintiff next argues that the ALJ failed to consider the combined effects of her subarachnoid
hemorrhage on her other medical impairments in making his RFC determination. (doc. 13 at 34-35.)
Many of us get headaches. We take a Tylenol. We carry on. But for sound medical
reasons, a headache is not just a headache in her case. It is a possible early sign that
she may be in mortal danger, a fear that can spiral into “profound panic” if the
headache lingers or if she is not allowed to treat it in the way that she has found to
be effective, which the RFC finding forbids.
(Id.) Plaintiff does not identify any specific medical records or testimony that the ALJ failed to
consider with this argument. (Id.) She merely disagrees with the ALJ’s conclusions.
The ALJ considered the medical records related to Plaintiff’s headaches and her history of
a ruptured aneurysm in making his RFC determination, including her own testimony regarding the
rupture of the aneurysm, her headaches, her treatment, and the relationship of the headaches to the
aneurysm. (See R. at 22-27.) As noted, in applying the substantial evidence standard, a reviewing
court does not reweigh the evidence, retry the issues, or substitute its own judgment, but rather,
scrutinizes the record to determine whether substantial evidence is present. Greenspan, 38 F.3d at
236. Because the ALJ relied on medical evidence in the record in making his RFC determination
and considered the combined effects of Plaintiff’s medical impairments in making his narrative
decision, his assessment was supported by substantial evidence.
Consideration of Evidence
Plaintiff also generally argues that the ALJ engaged in “cherry picking” of facts to support
his decision in violation of Loza v. Apfel, 219 F.3d 378 (5th Cir. 2000). (doc. 13 at 35-38.)
In Loza, the Fifth Circuit held that an “ALJ must consider all the record evidence and cannot
‘pick and choose’ only the evidence that supports his position.” Loza, 219 F.3d at 393 (citing
Switzer v. Heckler, 742 F.2d 382, 385-86 (7th Cir. 1984); Garfield v. Schweiker, 732 F.2d 605, 609
(7th Cir. 1984); Green v. Shalala, 852 F. Supp. 558, 568 (N.D. Tex. 1994); Armstrong v. Sullivan,
814 F. Supp. 1364, 1373 (W.D. Tex. 1993)). Accordingly, an ALJ must address and make specific
findings regarding the supporting and conflicting evidence, the weight to give that evidence, and
reasons for his or her conclusions regarding the evidence. Armstrong, 814 F. Supp. at 1373. There
is no general duty of explanation or to provide rational and logical reasons for a decision, however.
Escalante v. Colvin, No. 3:14-CV-0641-G-BH, 2015 WL 1443000, at *14 (N.D. Tex. Mar. 31, 2015)
(citing cases). The regulations require only that an ALJ consider and evaluate medical opinions.
See 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2). They do not require an ALJ to state the weight
given to each symptom and diagnosis in the administrative record. See Proge v. Comm’r of Soc.
Sec., No. 3:13-CV-310-SAA, 2014 WL 4639462, at *4 (N.D. Miss. Sept. 16, 2014) (applying 20
C.F.R. §§ 404.1527(a)(2), 416.927(a)(2)).
Although Plaintiff may disagree with the ALJ’s decision, the ALJ considered the medical
evidence in the record, including the medical opinions of Drs. Martin and Khan and the records of
Texas Neurology, when determining Plaintiff’s RFC. (See R. at 22-27.) Because the ALJ relied on
medical evidence in the record in making his RFC determination, his assessment was supported by
substantial evidence. See Greenspan, 38 F.3d at 236 (noting in applying the substantial evidence
standard, a reviewing court does not reweigh the evidence, retry the issues, or substitute its own
judgment). Remand is therefore not required on this basis.
The Commissioner’s decision is AFFIRMED.
SO ORDERED this 22nd day of March, 2017.
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE
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