Dennis v. Berryhill
Filing
26
Memorandum Opinion and Order: The Commissioner's decision is AFFIRMED. (Ordered by Magistrate Judge Irma Carrillo Ramirez on 3/13/2018) (epm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
TAJUANA DENNIS,
Plaintiff,
v.
NANCY A. BERRYHILL, ACTING,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.
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Civil Action No. 3:17-CV-443-BH
Consent
MEMORANDUM OPINION AND ORDER
By consent of the parties and the order of transfer dated April 24, 2017 (doc. 16), this case
has been transferred for the conduct of all further proceedings and the entry of judgment. Before
the Court are Appellant’s Brief, filed August 21, 2017 (doc. 24), and Defendant’s Response Brief,
filed September 20, 2017 (doc. 25). Based on the relevant filings, evidence, and applicable law, the
Commissioner’s decision is AFFIRMED.
I. BACKGROUND1
Tajuana Dennis (Plaintiff) seeks judicial review of a final decision by the Acting
Commissioner of Social Security (Commissioner) denying her claims for disability insurance
benefits (DIB) under Title II of the Social Security Act (Act) and for supplemental security income
(SSI) under Title XVI of the Act. (docs. 1, 24.)
A.
Procedural History
On September 9, 2013, Plaintiff filed her applications for DIB and SSI, alleging disability
beginning February 16, 2013. (R. at 165-66.) Her claims were denied initially and upon
1
The background information comes from the transcript of the administrative proceedings, which is designated as “R.”
reconsideration. (R. at 61-85.) Plaintiff requested a hearing before an administrative law judge
(ALJ), and she personally appeared and testified at a hearing on August 25, 2015. (R. at 37-60.)
On December 23, 2015, the ALJ issued a decision finding that she was not disabled and denying her
claims for benefits. (R. at 16-36.)
Plaintiff timely appealed the ALJ’s decision to the Appeals Council on February 25, 2016,
and included new medical evidence. (R. at 14-15.) The Appeals Council determined that the new
evidence did not provide a basis for changing the decision and denied her request for review on
December 20, 2016, making the ALJ’s decision the final decision of the Commissioner. (R. at 1-6.)
Plaintiff timely appealed the Commissioner’s decision under 42 U.S.C. § 405(g). (See doc. 1.)
B.
Factual History
1.
Age, Education, and Work Experience
Plaintiff was born on November 3, 1963, and was 51 years old at the time of the hearing.
(R. at 30, 165.) She graduated from high school and could communicate in English. (R. at 30.) She
had past relevant work experience as a warehouse worker. (R. at 30, 55.)
2.
Medical Evidence
On February 16, 2013, Plaintiff presented to the Baylor University Medical Center at Dallas
(Baylor) following a motor vehicle collision. (R. at 285-302.) She reported significant pain in her
right leg, and her X-rays showed “an acute, obliquely and transversely oriented acute fracture
through the right femur” and an “additional fracture through the intertrochanteric region of the
proximal femur” leading to her right hip. (R. at 295-97.) Surgery was performed the next day to
implant a “dynamic hip screw” into the right hip fracture and a “retrograde intramedullary nail” into
her right femur. (R. at 300.) During surgery, the “angle of the [hip] screw was too acute, and the
2
head of the screw broke off,” so two additional “interlocking screws were placed distally.” (R. at
302.) The procedure was successful overall, and she was later released in stable condition. (R. at
302.)
On March 12, 2013, Plaintiff returned to Baylor for a follow-up on her surgery. (R. at 27684.) No infections were identified, and Plaintiff denied pain due to the surgery. (R. 278.) She
believed that the incision had “opened slightly,” but upon examination, the incision was noted as
“healing well” with “no redness, swelling, [or] drainage from the surgical site.” (R. at 279.) She
reported pain in her right leg, but the physical exam showed that she was “in no apparent distress”
and that her “range of motion [was] intact in all extremities.” (R. at 279.) She was prescribed
Hydrocodone-Acetaminophen for the pain and instructed to “notify [Baylor] of unacceptable pain
level.” (R. at 279.)
On August 27, 2013, Plaintiff presented to Dr. Cecilia Okafor, D.O., her primary care
physician, for hip pain. (R. at 308, 334.) Her physical examination showed no abnormalities, but she
had elevated blood pressure of 140/90 and tenderness in her hip. (R. at 308, 334.) Dr. Okafor
diagnosed Plaintiff with hypertension and referred her to physical therapy. (R. at 334.)
Beginning October 2, 2013, Plaintiff started a physical therapy program at Wellness Care
Centers Rehab (Wellness Care). (R. at 304-06.) At her initial evaluation, she rated the pain in her
right hip as “7 out of 10 sitting, walking long distances, and standing.” (R. at 304.) Her strength was
rated as “4/5” on the left side and “3+/5” on her right side. (R. at 304.) Her current function level
was assessed as “sedentary” with limits on walking long distances. (R. at 304.) Her therapy goals
were to “walk without a limp, walk long distances, and decrease hip pain.” (R. at 304-05.)
From October 8, 2013, to February 4, 2014, Plaintiff received regular chiropractic treatment
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at Health First Injury & Pain Center (Health First.) (R. at 339-55, 365-74.) She complained of
“constant” pain that was “sharp” and “achy” in her back and right arm. (R. at 340, 343, 346.) Muscle
spasms and tenderness were noted, but there had been no loss in her range of motion. (R. at 340,
347.) She received “chiropractic manipulative treatment,” electrical stimulation, and hot packs
during her treatment. (R. at 340, 342, 345, 347.) During her appointment on October 24, 2013,
Plaintiff was assessed as “improved,” and her treatment plan was reduced. (R. at 347-48.) At her
final evaluation on February 4, 2014, she showed an increased range of motion in her hip and right
wrist, and she was discontinued from treatment. (R. at 380.)
On November 27, 2013, Plaintiff received an MRI of her lumbar spine at Mid-Cities
Imaging. (R. at 386.) Her “spinal canal diameters [were] normal” and there were “clear foramina
and unremarkable joint facets.” (R. at 386.) In her L4-5 vertebrae, there was “grade 1
spondylolisthesis . . . associated with long-standing or congenital posterior proliferative changes.”
(R. at 386.) The results also showed a “3-4 mm posterior central discal substance
protrusion/herniation focally” in her L5-S1 vertebrae. (R. at 386.)
On January 10, 2014, Plaintiff presented to Dr. Scott A. Farley, D.O., of the Comprehensive
Spine Center of Dallas for an examination of her lumbar back pain. (R. at 387-89.) Plaintiff reported
that she had a “significant history of lumbar pain prior to [her car] accident,” and that she was “not
using any medication, but [was] only on Tylenol at this time.” (R. at 387.) Dr. Farley noted that her
“past medical history [was] normal other than hypertension and high cholesterol,” and that the
current “review of systems [was] normal other than cholesterol.” (R. at 388-89.) During the physical
examination, he noted that Plaintiff could stand on her toes/heels and could “perform tandem gait.”
(R. at 389.) He noted tenderness in her lumbar spine and her range of motion showed “restricted
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forward flexion” in her knees. (R. at 389.) Her lower extremity muscle strength and sensation was
rated at “5/5” or normal for all areas, but her lower extremity reflexes were rated at “2/4” on both
the right and left sides. (R. at 390.) His diagnostic impressions were paraspinal muscle spasms in
her lumbar spine, and discogenic lumbar back pain from trauma. (R. at 390.) He instructed her on
stretching and strengthening exercises. (R. at 390.)
On April 4, 2014, Plaintiff met with Dr. Barbara Fletcher, Psy.D, for a consultative
psychological examination. (R. at 393-96.) Dr. Fletcher noted several times that Plaintiff “appeared
invested in presenting herself as impaired” because her “presentation was inconsistent and dramatic”
and “vague when pushed for details.” (R. at 393.) She first reported “a couple” of suicide attempts,
but she later admitted that “she [had] never attempted suicide.” (R. at 394.) She also reported that
she could not cook, clean, shop, or care for her personal hygiene on her own, but, after being asked
why she could not do these things, she simply said “[my family] don’t want me doing nothing
[because] they know my situation.” (R. at 394.) Dr. Fletcher opined that she had an average
intelligence, memory, concentration, judgment, and insight, even though she was “less than
cooperative” during the assessment. (R. at 395-96.) She also opined that her “mood was reported
as depressed” and her thought process was “circumstantial . . . [but] this did not appear due to the
presence of a formal thought disorder, but due to a desire to communicate her distress and an attempt
to avoid questions.” (R. at 395.) She diagnosed Plaintiff with an unspecific depressive and anxiety
disorder and offered a “guarded” prognosis due to self-reported “significant symptoms.” (R. at 396.)
On April 17, 2014, Plaintiff met with Dr. Dempsey D. Gordon, D.O., for an orthopedic
consultative examination. (R. at 400-07.) She rated her pain as “5/10” that was “sharp and aching
in the right hip and thigh.” (R. at 401.) She engaged in “daily activities that include[d] limited
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household chores, food preparation, dressing, and grooming,” but had difficulty and pain when
performing them. (R. at 402.) Her neurological assessment showed that she was cooperative,
“oriented x3,” a good historian, and had an appropriate mood and affect. (R. at 402.) Dr. Gordon
noted that her gait was “antalgic favoring the right lower extremity,” and she used a cane as an
assistive device. (R. at 402.) He found during the musculoskeletal examination that her active range
of motion in her right hip had been “diminished and performed with noted discomfort.” (R. at 403.)
He further determined during the sensorimotor examination that her motor muscle strength was
“5/5” in all of her upper and lower extremities, and her sensory function was “intact along all
dermatomal distributions bilaterally.” (R. at 403.) His diagnostic impressions were mild
degenerative joint disease of the right knee and status-post surgery hip fracture. (R. at 404.)
Also on April 17, 2014, Plaintiff received X-rays of her right hip and knee at North Texas
Imaging. (R. at 397-99.) The results showed “status post-remote open reduction and internal fixation
of the right femoral head and neck,” and the diagnostic impression was minimal degenerative
hypertrophy in all three compartments of the right knee joint. (R. at 397.)
On April 29, 2014, Plaintiff returned to Dr. Okafor for pain in her chest. (R. at 432.) Her
physical examination was normal, except that her blood pressure was significantly elevated at
190/110. (R. at 432.) Dr. Okafor instructed her to take her blood pressure medication daily as
prescribed. (R. at 432.) After a lipid profile, she also diagnosed Plaintiff with hyperlipidemia. (R.
at 432, 434-35.)
On July 22, 2014, and June 9, 2015, Plaintiff presented to Metrocare Services for treatment
for depression.2 (R. at 437-41, 443-46.) She had been “diagnosed with depression in the 1990s,” and
2
Plaintiff also had appointments at Metrocare on July 16, 2015, and August 27, 2014, but she was a “no show” for these
appointments. (R. at 436, 442.)
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felt that she “need[ed] to be back on [her] medication [because she had] been feeling depressed.”
(R. at 446.) During her appointment on July 22, 2014, she met with Nurse Maria Mosomi, APN,
who noted that she had an intact memory, a normal attention, fair insight, and “oriented x3.” (R. at
444.) Nurse Mosomi noted that Plaintiff complained of depression “but denie[d] any [symptoms].”
(R. at 445.) Based upon her subjective complaints of depression, Plaintiff was prescribed Zoloft. (R.
at 446.) During her appointment on June 9, 2015, she met with Nurse Charles Ejiofor, APN, who
noted that Plaintiff reported “mood swings every day,” but showed a normal performance in speech,
thought process, memory, attention, insight, and judgment. (R. at 439-40.) She was also “oriented
x3,” with a fair impulse and “flat” affect. (R. at 439.) Nurse Ejiofor instructed her to “restart Zoloft”
and meet with her primary care physician regularly. (R. at 437-38.)
On May 15, 2015, Dr. Randal Reid, M.D., a state agency medical consultant (SAMC),
completed a physical residual functional capacity (RFC) assessment of Plaintiff based upon the
medical evidence on record. (R. at 82-84.) Dr. Reid opined that she had the following exertional
limitations: could occasionally lift/carry 50 pounds; could frequently lift/carry 25 pounds; could
stand/walk for a total of about 6 hours in an 8-hour workday; could sit for a total of about 6 hours
in an 8-hour workday; and had an unlimited ability to push/pull. (R. at 82.) He identified no postural,
manipulative, visual, communicative, or environmental limitations. (R. at 83.)
On June 8, 2015, Plaintiff was referred by Dr. Okafor for X-rays of her right femur and knee.
(R. at 447-49.) Other than the surgically implanted plate and compression screws, “no acute
abnormalities [were] noted” in her right femur. (R. at 447.) Her right knee showed “hypertrophic
bony spurs arising from the articular margins” but “no fractures or dislocations.” (R. at 449.) The
diagnostic impression was degenerative joint disease in her right knee. (R. at 449.)
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On September 17, 2015, and February 2, 2016, Dr. Okafor completed Medical Source
Statements of Ability to do Work-Related Activities (Physical) on behalf of Plaintiff. (R. at 450-55,
458-63.) In both of her statements, she opined that Plaintiff had the following limitations: could
occasionally lift/carry up to 10 pounds; could sit for 2 hours; could stand/walk for 30 minutes at one
time; could occasionally use her upper extremities to reach, handle, finger, feel, push, or pull; could
never use her right foot to operate foot controls; could frequently use her left foot to operate foot
controls; and could never climb, balance, stoop, kneel, crouch, or crawl. (R. at 450-53, 458-61.) As
support for her opinions, Dr. Okafor pointed to Plaintiff’s right hip fracture, knee pain, and X-rays.
(R. at 450-51, 458-59.)
3.
Hearing Testimony
On August 25, 2015, Plaintiff and a vocational expert (VE) testified at a hearing before the
ALJ. (R. at 37-60.) Plaintiff was represented by an attorney. (R. at 39.)
a.
Plaintiff’s Testimony
Plaintiff testified that she was born on November 3, 1963, and was 51 years old. (R. at 42.)
She was “separated” from her husband and was the primary guardian of her 12-year-old son. (R. at
42.) She graduated from high school and had not worked since February 2013. (R. at 42.) Her last
job had been “janitorial work and warehouse production,” which she left after she had a car accident
that broke her femur and hip. (R. at 42-43.) A plate had been surgically inserted into her hip, as well
as two screws into her right knee. (R. at 47.)
When asked about her physical limitations, Plaintiff explained that she could stand “probably
about five to ten minutes” at one time and could sit “about five to ten minutes” before she had to
stand up again. (R. at 43-44.) She could “walk about two houses down” at one time, but she had to
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use a cane to do so. (R. at 44.) She had been prescribed a walker, which she only used around the
house because it was more “convenient for [her] to take the cane,” which had not been prescribed,
when she left the house. (R. at 44.) When she tried to walk without the cane, she had frequently
fallen when she was “getting out the bed, going into restrooms, or walking to the kitchen.” (R. at 4546.) She also had pain in her right knee, hip, and right hand after the car accident. (R. at 46-47.) She
received physical therapy for “about a month or two” after the car accident. (R. at 53.)
Plaintiff further testified that she had been diagnosed as “bipolar and depressive” at
Metrocare and had been prescribed Zoloft. (R. at 49-50.) She had trouble concentrating when
watching television or reading because she was “always thinking about what’s going on or how the
wreck happened.” (R. at 49.)
b.
VE’s Testimony
The VE testified that she had reviewed the vocational information in Plaintiff’s file and
determined that she had the following past relevant work experience: warehouse worker, DOT
922.687-058 (SVP: 2, medium). (R. at 55.)
The ALJ asked the VE to consider a hypothetical individual of the same age, education, and
work history as Plaintiff, and who also had the following restrictions: limited to simple, routine
repetitive tasks consistent with unskilled work; able to lift and carry 50 pounds occasionally and 25
pounds frequently; able to sit, stand, or walk for up to 6 hours with normal breaks in an 8-hour
workday; and no pushing/pulling/operation of foot controls with the right lower extremity. (R. at
56.)
The VE testified that the hypothetical individual would not be able to perform any of
Plaintiff’s past relevant work, but this individual could perform jobs that existed in the national and
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regional economy, which included the following: production helper, DOT 529.686-070 (SVP: 2,
medium), with 36,000 jobs nationally and 2,000 in Texas; laundry laborer, DOT 361.687-018 (SVP:
2, medium) with 92,000 jobs nationally and 6,000 in Texas; and hand packager, DOT 920.587-018
(SVP: 2, medium) with 160,000 jobs nationally and 9,000 in Texas. (R. at 56-57.)
The ALJ then asked the VE to consider another hypothetical individual with the following
restrictions: able to occasionally lift/carry 5 pounds; able to stand/walk for at least 2 hours out of an
8-hour workday with the use of a cane or other handheld assistive device; able to sit for 6 hours out
of an 8-hour workday; not able to push/pull/operate foot controls with the right lower extremity;
occasionally able to balance, stoop, kneel, crouch and climb ramps/stairs; and not able to climb
ladders, ropes or scaffolds. (R. at 57-58.) The VE responded that this individual would not be able
to perform any job in the national or regional economy. (R. at 58.) Plaintiff’s attorney had no
questions for the VE. (R. at 58.)
C.
The ALJ’s Findings
The ALJ issued a decision denying benefits on December 23, 2015. (R. at 16-36.) At step
one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her alleged
onset date of February 16, 2013. (R. at 21.) At step two, the ALJ found that she had the following
severe impairments: status post-right hip and femur fracture and degenerative disc disease in the
lumbar spine. (R. at 21.) Despite those impairments, at step three, the ALJ found that Plaintiff 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. at 25.)
Next, the ALJ determined that Plaintiff retained the RFC to perform medium work with the
following limitations: lift/carry 50 pounds occasionally and 25 pounds frequently; sit/stand/walk for
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6 hours out of an 8-hour workday; unlimited ability to push and pull (including operation of hand
and/or foot controls) on the left side; and unable to push/pull or operate foot controls using her right
lower extremity. (R. at 26-29.)
At step four, the ALJ determined that Plaintiff was unable to perform any of her past relevant
work. (R. at 30.) At step five, the ALJ relied upon the VE’s testimony to find her capable of
performing work that existed in significant numbers in the national economy, including jobs such
as production helper, laundry laborer, and hand packager. (R. at 30-31.) Accordingly, the ALJ
determined that Plaintiff had not been under a disability, as defined by the Social Security Act, from
the alleged onset date of February 16, 2013, through the date of the decision. (R. at 31.)
D.
New Evidence Submitted to the Appeals Council
Plaintiff timely appealed the ALJ’s decision to the Appeals Council and submitted new
evidence, which consisted of a Medical Assessment of Ability to do Work-Related Activities
(Mental) completed by Dr. Ikechukwu Ofomata of Metrocare on January 26, 2016.3 (R. at 466-69.)
He opined that Plaintiff had “some loss” in: understanding and carrying out instructions; sustained
concentration and persistence; and responding appropriately to supervisors, co-workers, and usual
work situations. (R. at 466-67.) He also opined that she had “substantial loss of ability” to adapt to
changes in a routine work setting, she would be absent from work more than 4 days a month due to
her impairments, and her mental disorders “probably do exacerbate the degree of disability [she]
experienced from his/her physical impairments.” (R. at 467-68.)
The Appeals Council denied Plaintiff’s request for review on December 20, 2016, and
determined that the additional evidence did “not provide a basis for changing the [ALJ’s] decision.”
3
Dr. Ofomata was identified as the “attend/clinician” at Plaintiff’s appointment at Metrocare on June 9, 2015. (R. at
437-41.)
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(R. at 1-2.)
II. LEGAL STANDARD
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
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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
is disabled:
1.
An individual who is working and engaging in substantial gainful activity will not
be found disabled regardless of medical findings.
2.
An individual who does not have a “severe impairment” will not be found to be
disabled.
3.
An individual who “meets or equals a listed impairment in Appendix 1” of the
regulations will be considered disabled without consideration of vocational factors.
4.
If an individual is capable of performing the work he has done in the past, a finding
of “not disabled” must be made.
5.
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 performed.
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)). 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
13
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 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).
III. ISSUES FOR REVIEW
Plaintiff presents four issues for review:
A.
The ALJ erred in failing to address the functional impact of [Plaintiff’s]
obesity.
B.
The ALJ erred in finding that [Plaintiff] did not have a severe mental
impairment, and in making such finding he failed to apply the correct
standard.
C.
The ALJ erred in determining [Plaintiff’s] RFC, and such finding is not
supported by substantial evidence of record.
D.
The Appeals Council erred in failing to evaluate the treating source statement
of Ikechukwu Ofomata, Ph.D.
(doc. 24 at 1, 11.)
A.
Obesity
Plaintiff first argues that the ALJ erred when he failed to “address the functional impact” of
her obesity as required under SSR 02-1p. (doc. 24 at 9-10.)
Under SSR 02-1p, obesity itself is not a listed impairment, but it can reduce an individual’s
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occupational base for work activity in combination with other ailments. See SSR 02–1p, 2002 WL
34686281, at *3 (S.S.A. Sep. 12, 2002). “Obesity can cause limitation of function . . . [and an]
individual may have limitations in any of the exertional functions such as sitting, standing, walking,
lifting, carrying, pushing, and pulling. It may also affect ability to do postural functions, such as
climbing, balance, stooping, and crouching.” Id. at *6. SSR 02–1p “does not state obesity
necessarily causes any additional function limitations; rather, it provides obesity can cause such
limitations.” Medrano v. Astrue, No. A-09-CA-584-SS, 2010 WL 2522202, at *5-6 (W.D. Tex. June
17, 2010) (citing SSR 02-1p). The ALJ is not required to find any particular limitations of functions
because of a claimant’s obesity, and it should be considered in combination with other impairments
in discussing the claimant’s ability to perform sustained work activities. See Beck v. Barnhart, 205
F. App’x. 207, 212 (5th Cir. 2006) (citing SSR 02–1p). However, there “should be some indication
in the administrative applications or medical record itself that a claimant’s obesity has caused some
level of functional limitation, has exacerbated other existing ailments, or has otherwise affected the
claimant.” Robertson v. Berryhill, No. 2:16-CV-249-J-BR, 2017 WL 6767373, at *6-7 (N.D. Tex.
Dec. 11, 2017), adopted by 2018 WL 278674 (N.D. Tex. Jan. 2, 2018).
Here, the ALJ noted that Plaintiff “listed a broken hip and femur as the conditions limiting
her ability to work;” she never identified any limitations due to her obesity. (R. at 21.) He reviewed
all of her medical records, which contained no diagnosis for obesity or opinion as to any physical
limitation due to obesity. (R. at 24-25.) During the RFC step, he determined that Plaintiff had the
following abilities based upon her medical history and subjective complaints: lift/carry 50 pounds
occasionally and 25 pounds frequently; sit/stand/walk for 6 hours out of an 8-hour workday; and
unable to push/pull or operate foot controls using her right lower extremity. (R. at 26-29.)
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Plaintiff contends that the ALJ erred by “fail[ing] to even acknowledge the existence of
obesity” as a functional limitation because her height and weight during many of her physical exams
placed her Body Mass Index4 (BMI) in the obesity range. (doc. 24 at 10.) She also points to her presurgery evaluation at Baylor, when the internist noted that Plaintiff had high blood pressure, obesity,
hyperglycemia, and hypokalemia. (R. at 288-91.) None of the medical records identify any
functional limitations due to her obesity, formal treatment for her obesity, or even calculated her
BMI. Neither Plaintiff nor her counsel alleged any limitations due to obesity during the hearing
before the ALJ, but she now claims for the first time on appeal that “her obesity clearly had an
adverse impact upon her ability to successfully complete rehabilitation of her hip and leg fractures,
and compounded [her physical] residual limitations.” (doc. 24 at 10.) She, however, fails to cite to
any evidence in the record to demonstrate that her obesity exacerbated her other medical
impairments or to where her physicians stated that her obesity imposed additional functional
limitations. Accordingly, Plaintiff has not met her burden to show that her obesity impacted her
physical or mental ability to sustain work activity, and this point of error is merely speculative. See
Robertson, 2017 WL 6767373, at *6-7 (finding no error when the ALJ “did not mention or discuss
plaintiff’s BMI measurements or discuss plaintiff’s qualifying obesity at any level of the sequential
evaluation” because “there were no opinions from any medical sources concluding plaintiff had any
limitations specifically due to his weight or any evidence or testimony that his weight exacerbated
his other impairments, and [no] evidence to show either that additional limitations were warranted
4
The National Institutes of Health created parameters, which are relied upon in the Social Security Regulations, for
measuring three levels of obesity based on a BMI. SSR 02-1p at *2. Level I obesity includes BMIs of 30.0 to 34.9; Level
II includes BMIs of 35.0 to 39.9; Level III, also known as “extreme” obesity, includes BMIs greater than or equal to 40.
Id. These classifications “describe the extent of the obesity, but they do not correlate with any specific functional loss.”
Id.
16
due to plaintiff’s weight”); see also Vogt v. Astrue, No. 3:11-CV-315-BH, 2011 WL 5245421, at *11
(N.D. Tex. Nov. 2, 2011) (finding no error when the plaintiff “fail[ed] to cite to any evidence in the
record to demonstrate that her obesity exacerbated her other medical impairments”). Remand is not
required on this issue.
B.
Severity Standard
Plaintiff next argues that the ALJ applied an improper standard to evaluate the severity of
her mental impairments at Step Two in violation of Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985).
(doc. 24 at 11-15.)
1.
Stone
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). 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). 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 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.” Stone, 752 F.2d at 1101, 1104-05. Accordingly, to
meet the severity threshold at Step Two, “the claimant need only . . . make a de minimis showing
that [the] impairment is severe enough to interfere with her ability to do work.” Anthony, 954 F.2d
at 294 n.5 (citation omitted). “Because a determination [of] whether an impairment[ ] is severe
requires an assessment of the functionally limiting effects of an impairment[ ], [all] symptom-related
17
limitations and restrictions must be considered at this step.” SSR 96-3P, 1996 WL 374181, at *2
(S.S.A. July 2, 1996). Ultimately, a severity determination may not be “made without regard to the
individual’s ability to perform substantial gainful activity.” Stone, 752 F.2d at 1104.
Here, when identifying Plaintiff’s severe impairments, the ALJ stated that Plaintiff’s mental
impairments did “not cause more than minimal limitations in [Plaintiff’s] ability to perform basic
mental work activities and [was] therefore nonsevere.” (R. at 23.) The Commissioner “concedes that
the ALJ did not reference Stone in his decision.” (doc. 25 at 3.)
Unlike the ALJ’s articulation of the severity standard, Stone provides no allowance for a
minimal interference with a claimant’s ability to work. Stone, 752 F.2d at 1104. Given the difference
between these two constructions and the ALJ’s failure to cite to Stone, he applied an incorrect
standard of severity. See Garcia v. Astrue, No. 3:08-CV-1881-BD, 2010 WL 304241, at *3 (N.D.
Tex. Jan. 26, 2010); see also Lawson v. Astrue, No. 4:11-CV-00426, 2013 WL 449298, at *4 (E.D.
Tex. Feb. 6, 2013) (noting “while the difference between the two statements appears slight, it is clear
that the [regulatory definition] is not an express statement of the Stone standard”).
2.
“The Technique”
Notwithstanding his application of an incorrect severity standard, the ALJ then applied what
has been referred to as “the technique.” (R. at 23-24.) It requires an ALJ to rate the degree of
functional limitation regarding each medically determinable mental impairment he finds. 20 C.F.R.
§ 404.1520a(a). The degree of functional limitation is rated in four broad functional areas: activities
of daily living; social functioning; concentration, persistence, or pace; and episodes of
decompensation. Id. at § 404.1520a(c)(3). If the ALJ rates the degree of limitation in the first three
functional areas as “none” or “mild” and as “none” in the fourth area, the impairment will be found
18
not severe, unless there is evidence that indicates that there is more than a minimal limitation in the
ability to do basic work activities. Id. at § 404.1520a(d)(1).
Courts have found that an ALJ has used the appropriate severity standard when he or she has
utilized the technique to evaluate mental impairments. See Andrews v. Astrue, 917 F. Supp. 2d 624,
634-36 (N.D. Tex. 2013) (reviewing the ALJ’s use of the technique set forth in the regulations for
evaluation of mental impairments); Andrade v. Astrue, No. 4:11-CV-318-Y, 2012 WL 1106864, at
*8 (N.D. Tex. Feb 13, 2012)(same). Although the technique does not contain the severity standard
set forth in Stone, an ALJ’s finding of no limitations or even mild limitations under the technique
would not be inconsistent or contrary to Stone. See White v. Astrue, No. 4:08-CV-415-Y, 2009 WL
763064, at *11 (N.D. Tex. Mar. 23, 2009) (holding the ALJ’s finding of nonseverity was not
contrary to Stone, despite the ALJ’s recitation of an improper standard of severity, where the ALJ
applied the special technique set forth in the regulations for evaluating mental impairments and
found mild deficits in her concentration, persistence or pace, as well as social functioning”).
Here, that ALJ found that Plaintiff only had “mild limitations” in her activities of daily
living, social functioning, and concentration, persistence, or pace. (R. at 23-24.) He further found
that she had “no episode of decompensation.” (R. at 23.) When making this determination, he
specifically considered her medical records from Metrocare and Dr. Fletcher’s psychiatric
examination, as well her testimony from the hearing. (R. at 23.) He further noted that all of her
“mental status examinations have been essentially within normal limits.” (R. at 23.)
The ALJ’s application of the technique when making his severity determination as to
Plaintiff’s mental impairments is sufficient to avoid reversal under Stone. See Andrews, 917 F.
Supp. 2d at 635-36 (finding the ALJ’s analysis of the claimant’s mental impairments under the
19
technique was sufficient to avoid reversal pursuant to Stone and its progeny); Andrade, 2012 WL
1106864, at *8-9 (finding that although the ALJ cited conflicting severity standards, his
determination under the technique that the claimant had no severe mental impairments was an
implicit finding that her mental impairments had such minimal effect that they would not be
expected to interfere with the claimant’s ability to work, and was therefore sufficient to avoid
reversal under Stone); Martinez, 2011 WL 3930219, at *7 (“[T]he Court concludes . . . that the
ALJ’s analysis of [the claimant’s] depression under the technique, resulting in a finding that [the
claimant] had only a mild impairment in the four functional areas, is sufficient to avoid reversal
pursuant to Stone and its progeny.”).
The ALJ’s determination that Plaintiff had no severe mental impairment was also supported
by substantial evidence, including the medical records from Metrocare that always noted how
Plaintiff had an intact memory, a normal attention, normal thought process, fair insight, and
“oriented x3” (R. at 439-40, 444), and the consultative examination with Dr. Fletcher, who opined
that Plaintiff had an average intelligence, memory, concentration, judgment, and insight, even
though she was “less than cooperative” during the assessment (R. at 393-96). Because the ALJ
properly utilized “the technique,” and substantial evidence supports his severity findings, remand
is not required on this issue.5 See Walker v. Colvin, No. 3:14-CV-1498-L-BH, 2015 WL 5836263,
at *12 (N.D. Tex. Sept. 30, 2015) (finding no error when the ALJ’s “utilization of ‘the technique’
support[ed] the conclusion that he ultimately applied the correct severity standard in evaluating
Plaintiff’s mental impairments”).
5
Plaintiff points out that the ALJ “totally ignored” Dr. Ofomata’s medical assessment. (doc. 24 at 14.) This assessment,
however, was not submitted until over a month after the ALJ’s decision. (R. at 1-6, 465-69.) Dr. Ofomata’s medical
assessment is fully analyzed in Plaintiff’s fourth issue regarding the Appeals Council’s review of the newly submitted
evidence.
20
C.
RFC Determination
Plaintiff argues that the ALJ erred during the RFC determination because his findings “that
[Plaintiff] could perform the physical demands of medium work, other than operation of foot
controls and pushing/pulling with her right leg, is not supported by substantial evidence of record.”
(doc. 24 at 15.)
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). It “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.” SSR 96-8p, 1996 WL 374184, at *1 (S.S.A. July 2, 1996). 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. 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). The ALJ’s determination necessarily includes an assessment of the nature and extent of
a claimant’s limitations and determines what the claimant can do “on a regular and continuing
basis.” Dunbar v. Barnhart, 330 F.3d 670, 672 (5th Cir. 2003) (“Both [20 C.F.R. § 404.1545 and
SSR 96–8p] make clear that RFC is a measure of the claimant’s capacity to perform work ‘on a
regular and continuing basis.’”). The ALJ may find that a claimant has no limitation or restriction
as to a functional capacity when there is no allegation of a physical or mental limitation or restriction
regarding that capacity, and no information in the record indicates that such a limitation or
restriction exists. See SSR 96-8p, 1996 WL 374184, at *1. The ALJ’s RFC decision can be
supported by substantial evidence even if she does not specifically discuss all the evidence that
21
supports her decision, or all the evidence that she rejected. Falco v. Shalala, 27 F.3d 160, 164 (5th
Cir. 1994)
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 decision. Id. Courts may not reweigh the evidence or substitute their
judgment for that of the Secretary, however, and a “no substantial evidence” finding is appropriate
only if there is a “conspicuous absence of credible choices” or “no contrary medical evidence”. See
Johnson, 864 F.2d at 343 (citations omitted).
In his decision, the ALJ specifically reviewed the medical records from Dr. Fletcher,
Metrocare, Dr. Gordon, the SAMC, Dr. Okafor, Dr. Farley, and her MRI/X-ray results. (R. at 2224.) Based upon those records, he found that Plaintiff had the severe impairments of “status postright hip and femur fracture” and degenerative disc disease in the lumbar spine. (R. at 21.) The ALJ
then detailed Plaintiff’s allegations on her impairments, including how she testified that she could
sit/stand for about 5-10 minutes, could walk only 2 houses down, and had to use a cane that she had
not been prescribed. (R. at 27-28.) The ALJ found that her “medically determinable impairments
could reasonably be expected to cause some symptoms,” but her statements “concerning the
intensity, persistence, and limiting effects of these symptoms are not entirely credible.” (R. at 28.)
He noted that Plaintiff had “sought little actual follow-up care for the impairment involving [her]
22
lower extremity,” had not been “prescribed any medication or other therapy modes by any
specialist,” “at least two diagnostic studies of her right leg and hip [had] shown no abnormalities,”
and her consultative exam showed “5/5” motor strength with sensory measurements. (R. at 28.) He
further noted that Plaintiff’s allegations that she was unable to cook or perform chores were
“difficult to reconcile with the fact that she apparently has custody of her son and lives with him and
no others.” (R. at 28.) He gave significant weight to the consultative examiners’ assessments,
considerable weight to the SAMC, and little weight to the assessments from Dr. Okafor because of
the “vagueness of the opinion, the absences of narrative treatment notes, and the record as a whole.”
(R. at 29.) He agreed with the SAMC that Plaintiff was capable of performing “medium” work, but
he included additional exertional and postural limitations to her right lower extremity. (R. at 26.)
The ALJ ultimately determined that Plaintiff retained the RFC to perform medium work with the
following limitations: lift/carry 50 pounds occasionally and 25 pounds frequently; sit/stand/walk for
6 hours out of an 8-hour workday; unlimited ability to push and pull (including operation of hand
and/or foot controls) on the left side; and unable to push/pull or operate foot controls using her right
lower extremity. (R. at 26-29.)
Plaintiff contends that the medical evidence “contradicts” the ALJ’s determination of her
physical limitations. (doc. 24 at 15, 20.) She points to Drs. Gordon’s and Farley’s medical records,
as well as her X-ray results, to argue that “[i]t is incredible to believe that a person who due to
traumatic injury has had a plate and screw inserted into her hip, and a plate, rod and screw inserted
into her right leg . . . could possibly perform the 6 hours of standing and/or walking required of
medium work.” (Id. at 16-17.) The ALJ specifically reviewed and addressed these medical records
in his decision, however. (R. at 26-29.) Dr. Gordon found that her active range of motion in her right
23
hip was “diminished and performed with noted discomfort,” but during the sensorimotor
examination, he found that her motor muscle strength was “5/5” in all of her upper and lower
extremities and her sensory function was “intact along all dermatomal distributions bilaterally.” (R.
at 403.) Dr. Farley similarly found that her range of motion showed “restricted forward flexion” in
her right knee, but her lower extremity muscle strength and sensation was rated at “5/5” or normal
for all areas, where she could stand on her toes/heels and could “perform tandem gait.” (R. at 38990.) Her X-ray results were consistent with the medical examinations, and they showed “no acute
abnormalities” in her right femur, other than the surgically implanted plate and compression screws,
and “hypertrophic bony spurs arising from the articular margins” in her right knee with “no fractures
or dislocations.” (R. at 447-49.) After considering the reports from the examining physicians, the
ALJ determined that the SAMC’s RFC assessment should be further limited based upon the
evidence of record, and he included several physical limitations on her right lower extremity to the
RFC consistent with the examining physicians’ assessments. (R. at 26, 29-30.) The decision does
not show that medical evidence “contradicts” the ALJ’s RFC finding; it shows that the ALJ fulfilled
his role as the finder of fact to weigh the evidence in the record, resolve all conflicts in the evidence,
and make an administrative assessment of Plaintiff’s ability to work.6 See Dise v. Colvin, 630 F.
App’x 322, 326 (5th Cir. 2015) (holding that a “diagnosis is not, itself, a functional limitation”); see
6
Plaintiff points out that even though she was never prescribed a cane, “there is also no indication in the record that
[Plaintiff] was discouraged from using an assistive device.” (doc. 24 at 17-18.) To the extent that she argues that the use
of a cane should have been included in the RFC, Plaintiff fails to meet her burden to show that she required a cane to
ambulate, and substantial evidence in the record supports the ALJ’s refusal to include the use of a cane in the RFC. See
Johnson v. Berryhill, No. 3:15-CV-3961-BH, 2017 WL 1105720, at *11 (N.D. Tex. Mar. 24, 2017) (finding no error
when the ALJ did not incorporate use of a cane in the RFC because “none of the records state that it was medically
necessary, and they instead simply note that she brought her own cane with her to the evaluations”); see also Stewart
v. Colvin, No. 1:12-CV-039-BL, 2013 WL 1979738 at *5 (N.D. Tex. May 14, 2013) (finding no error when the ALJ
failed to incorporate the use of a cane in the RFC because the record contained no evidence regarding the medical basis
for the cane and there was “no physician’s report regarding specific medical restrictions requiring [the claimant] to use
an assistive device”).
24
also Hames v. Heckler, 707 F.2d 162, 165 (5th Cir. 1983) (explaining that “[t]he mere presence of
some impairment is not disabling per se”).
Plaintiff further contends that the ALJ was “simply incorrect” in his review of Dr. Okafor’s
medical records and “play[ed] doctor”7 when he rejected his medical assessment on her physical
limitations.8 (doc. 24 at 19-20.) The ALJ’s decision noted that Dr. Okafor opined that Plaintiff was
“limited to a significantly less than sedentary range of exertional activities,” but this opinion failed
to provide a “sufficient nexus to a medically determinable impairment reasonably capable of
producing the symptoms and limitations.” (R. at 29.) He noted that the record contained only “four
handwritten notes for only four clinic visits in 2013,” where “none contain[ed] objective evidence
pertaining to her examination of [Plaintiff’s] right knee, hip, or lower back.” (R. at 29.) He also
noted that “Dr. Okafor made reference to ‘see X-ray’” in his medical assessment, but the X-ray
reported “no acute abnormalities.” (R. at 29.) Plaintiff contends that this assessment was “an
inaccurate reading of the evidence of record” because the X-rays also showed the existence of the
surgically implanted screws, and because Dr. Okafor identified hip tenderness during one
appointment in 2013 when she referred her to physical therapy for “lower extremity strengthening
and adduction strengthening.” (doc. 24 at 19-20) (citing R. at 410-11, 417, 427, 447.)
While Dr. Okafor did refer her to physical therapy, her medical records are devoid of any
objective findings of Plaintiff’s impairments, except for a notation of “tenderness” in her hip from
a limited physical examination that occurred over two years before Dr. Okafor made her medical
7
The phrase “playing doctor” was used in Frank v. Barnhart, 326 F.3d 618, 621-22 (5th Cir. 2003), which held that
the ALJ erred when he drew his own medical conclusions that were contrary to the claimant’s subjective statements and
the weight of “vast” medical evidence.
8
Plaintiff does not argue that the ALJ failed to properly analyze Dr. Okafor’s medical assessment as a treating source
opinion pursuant to 20 C.F.R. § 404.1527. (See doc. 24 at 15-20.)
25
assessment. (R. 334, 457-64.) The record does not show that Dr. Okafor formally treated Plaintiff’s
injuries over a period of time or even prescribed any medication other than for hypertension. The
medical record, including Dr. Gordon’s consultative assessment and Dr. Okafor’s own medical
records, do not support the finding that Plaintiff was limited to a significantly less than sedentary
RFC. (R. at 308, 334, 400-07, 432.) The ALJ was not “playing doctor” in his decision, and
substantial evidence supports the determined RFC. See Coats v. Colvin, No. 3:12-CV-4968-M, 2013
WL 6052879, at *5 (N.D. Tex. Nov. 14, 2013) (noting that an ALJ “is not playing doctor by
determining which of contradictory medical opinions to credit [because] that is precisely the type
of conflict he is called upon to resolve”) (citing Perez, 415 F.3d at 461). As the trier of fact, the ALJ
was entitled to weigh the evidence against other objective findings, including the opinion evidence
available and the record as a whole. See Walker v. Barnhart, 158 F. App’x 534, 535 (5th Cir. 2005)
(quoting Newton, 209 F.3d at 458). Accordingly, a reviewing court must defer to the ALJ’s
decisions. See Leggett, 67 F.3d at 564. To the extent that Plaintiff complains of the failure to include
more restrictive physical limitations in the RFC, the ALJ did not err, and remand is not required on
this issue.
D.
New Evidence to Appeals Council
In her final issue, Plaintiff argues that the Appeals Council erred by “failing to evaluate the
treating source statement of Dr. Ofomata.” (doc. 24 at 20-22.)
When a claimant submits new and material evidence that relates to the period before the date
of the ALJ’s decision, the Appeals Council must consider the evidence in deciding whether to grant
a request for review. 20 C.F.R. § 404.970(b). The regulations do not require the Appeals Council
to discuss the newly submitted evidence or to give reasons for denying review. See Sun v. Colvin,
26
793 F.3d 502, 511 (5th Cir. 2015). New evidence submitted to the Appeals Council becomes part
of the record upon which the Commissioner’s decision is based. Higginbotham v. Barnhart, 405
F.3d 332, 337 (5th Cir. 2005). A court considering the Appeals Council’s decision must review the
record as a whole to determine whether the Commissioner’s decision is supported by substantial
evidence, and should remand only if the new evidence dilutes the record to such an extent that the
ALJ’s decision becomes unsupported. Higginbotham v. Barnhart, 163 F. App’x 279, 281-82 (5th
Cir. 2006); Morton v. Astrue, No. 3:10–CV–1076–D, 2011 WL 2455566 at *7 (N.D. Tex. June 20,
2011) (“The proper inquiry concerning new evidence takes place in the district court, which
considers whether, in light of the new evidence, the Commissioner’s findings are still supported by
substantial evidence.”) (citations omitted).
Newly submitted evidence is material if: (1) it relates to the time period for which the
disability benefits were denied; and (2) there is a reasonable probability that it would have changed
the outcome of the disability determination. Castillo v. Barnhart, 325 F.3d 550, 551-52 (5th Cir.
2003). Evidence of a later-acquired disability or a subsequent deterioration of a non-disabling
condition is not material. Johnson v. Heckler, 767 F.2d 180, 183 (5th Cir. 1985). Generally, “the
Commissioner need ‘not concern evidence of later-acquired disability or of the subsequent
deterioration of the previously nondisabling condition,’” because it fails to meet the materiality
requirement. Powell v. Colvin, No. 3:12-CV-1489-BH, 2013 WL 5433496 at *11 n.9 (N.D. Tex.
2013) (quoting Johnson, 767 F.2d at 183). Post-dated records may meet the first prong of
materiality, however, as long as the records relate to the time period for which disability benefits
were denied. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995) (holding that new evidence of scar
tissue related to the adjudicative period because it resulted from a prior surgery).
27
When she appealed the ALJ’s decision to the Appeals Council, Plaintiff submitted a Medical
Assessment of Ability to do Work-Related Activities (Mental) that was completed by Dr. Ofomata
of Metrocare on January 26, 2016. (R. at 466-69.) He opined that Plaintiff had “some loss” in:
understanding and carrying out instructions; sustained concentration and persistence; and responding
appropriately to supervision, co-workers, and usual work situations. (R. at 466-67.) She also had
“substantial loss of ability” to adapt to changes in a routine work setting. (R. at 467.) The Appeals
Council denied her request for review on December 20, 2016, and determined that the additional
evidence did “not provide a basis for changing the [ALJ’s] decision.” (R. at 1-2.)
Plaintiff contends that the Appeals Council should have formally weighed Dr. Ofomata’s
assessment as a treating source opinion under the six factors9 in 20 C.F.R. § 404.1527(c) and also
had to “provide good cause” before rejecting this opinion. (doc. 24 at 21-22.) She fails to point to
any authority requiring such an extensive analysis of new evidence when the Appeals Council denies
a request for review, however.10 See Sun, 793 F.3d 502, 511 (5th Cir. 2015) (explaining that the
“[social security] regulations do not require the AC to provide a discussion of the newly submitted
evidence or give reasons for denying review”); see also Jones v. Astrue, 228 F. App’x 403, 407 (5th
Cir. 2007) (refusing to accept the plaintiff’s argument that “the district court should have remanded
the case because the Appeals Council did not explain the weight that it gave to [the plaintiff’s] new
9
If controlling weight is not given to a treating source’s opinion, the ALJ 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.” 20 C.F.R. § 404.1527(c)(1)–(6).
10
As support, Plaintiff cites to what she claims is a 2011 opinion from the Fifth Circuit Court of Appeals. (doc. 24 at
22) (citing to “Holmstrom v. Massanari, 270 F.3d 715, 720 (5th Cir. 2011)”), but which is actually a 2001 opinion from
the Eighth Circuit Court of Appeals, and it also does not support her contention that the Appeals Council must explicitly
weigh the six factors when declining to afford controlling weight to a treating source opinion. See Holmstrom v.
Massanari, 270 F.3d 715, 721 (8th Cir. 2001).
28
evidence” because “we determined that such an explanation was not required”). Even if the Appeals
Council did have to explicitly consider all six factors before declining to afford controlling weight
to a treating source’s opinion, Plaintiff has not shown that Dr. Ofomata is a treating source. Other
than the assessment that he submitted after the ALJ rendered his decision, Dr. Ofomata was
mentioned only once in the medical record as the “attend/clinician” at Plaintiff’s appointment at
Metrocare on June 9, 2015, and there are no medical documents in the administrative record that
Plaintiff ever met with Dr. Ofomata or that he signed off on her records.11 (R. at 437-41); see 20
C.F.R. § 404.1502 (explaining that 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); see also
Hernandez v. Heckler, 704 F.2d 857, 860-61 (5th Cir. 1983) (affirming finding that a doctor who
saw claimant twice in a 17 months was not a treating physician).
Dr. Ofomata’s medical opinion also post-dates the ALJ’s decision by over a month and does
not state whether his assessment covers the period considered in the ALJ’s decision. (See R. at 46569.) Even assuming that the assessment relates to the time period at issue, it is inconsistent with both
Dr. Fletcher’s consultative opinion and Metrocare’s own medical records. Reviewing the record as
a whole, the new evidence did not dilute the record to the extent that the ALJ’s decision became
insufficiently supported. The ALJ’s finding on Plaintiff’s functional limitations due to any mental
11
To the extent that Plaintiff is arguing that Metrocare Services itself should be considered a “treating physician” and
given controlling weight, courts in this district have differentiated between the medical opinions of various doctors at
Metrocare when considering the opinions of treating physicians. See, e.g., Payne v. Colvin, No. 3:14-CV-2557-BH, 2016
WL 5661647, at *12 (N.D. Tex. Sept. 28, 2016) (finding no error when the ALJ determined that a Metrocare
“supervising psychiatric” was not a treating source because it was “not clear if she actually examined the plaintiff in
person because the ‘service provider’ listed by Metrocare Services was actually [a different individual]”); Bookman v.
Colvin, 3:13-CV-4428-B, 2015 WL 614850, at *8 & n.3 (N.D. Tex. Feb. 12, 2015) (noting the inconsistency between
the medical records of the treating physician at Metrocare and other Metrocare professionals).
29
impairment were still supported by substantial evidence, and the Appeals Council did not err. See
Morton, 2011 WL 2455566 at *7 (stating that if, “in light of the new evidence, the [ALJ’s] findings
are still supported by substantial evidence,” the Court must affirm the Commissioner’s decision.).
Remand is not appropriate on this ground.
IV. CONCLUSION
The Commissioner’s decision is AFFIRMED.
SO ORDERED this 13th day of March, 2018.
___________________________________
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE
30
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