Mitchell v. Colvin

Filing 10

MEMORANDUM AND ORDER (Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
QUEEN MITCHELL,
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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November 25, 2015
David J. Bradley, Clerk

CIVIL ACTION NO. 4:15-0043

MEMORANDUM AND ORDER
In this case appealing a denial of Social Security benefits, Plaintiff Queen Ester
Mitchell has filed a Motion for Summary Judgment and a Memorandum in Support
[Doc. # 8]. Defendant has filed a Cross Motion for Summary Judgment and a
Memorandum in Support [Doc. # 9]. The motions now are ripe for decision. Having
considered the parties’ briefing, the applicable legal authorities, and all matters of
record, the Court concludes that Plaintiff’s motion should be denied that Defendant’s
motion should be granted.
I.

BACKGROUND
A.

Procedural Background

Plaintiff Mitchell filed an application with the Social Security Administration

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(“SSA”) on January 4, 2012, seeking supplemental security income (“SSI”) benefits
under Title XVI, and on January 10, 2012, seeking disability benefits under Title II.
She alleges onset of disability on January 1, 2012. After being denied benefits
initially and on reconsideration, Plaintiff timely requested a hearing before an
Administrative Law Judge (“ALJ”) to review the denial.
On July 23, 2013, ALJ Robert N. Burdette held an administrative hearing at
which Plaintiff appeared by video and testified, represented by attorney Robert Todd.
R. 82-97. The ALJ also heard testimony from vocational expert Byron J. Pettingill.
On August 6, 2013, the ALJ denied Plaintiff’s request for benefits. R. 47-64.
On November 7, 2014, the Appeal Council denied Plaintiff’s request for review. R.
1-7. Plaintiff filed this case on January 7, 2015, seeking judicial review of the
Commissioner’s denial of her claim for benefits. Complaint [Doc. # 1].
B.

Factual Background

Mitchell applied for benefits based on multiple impairments including
schizoaffective disorder, mood swings, depression, insomnia, and leg pain. R. 185.
The relevant period for inquiry is from her alleged onset date of January 1, 2012,
through August 6, 2013, the date of the ALJ’s decision denying her application for
benefits.
Mitchell worked as a correctional officer at the Texas Department of Criminal

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Justice until August 2011, when she broke her right tibia (shinbone) and had surgery.
Mitchell returned to work in December 2011 for two weeks but could not meet the
job’s demands, and quit in late December. R. 85-86. In denying Mitchell’s
application for benefits, the ALJ considered her physical condition, including her
broken leg, neuropathy, and obesity. Although he noted Mitchell’s diagnosis of
schizoaffective disorder, he determined that the impairment was not severe.
In this appeal, Mitchell challenges only the portion of the Commissioner’s
decision regarding her mental impairment. The administrative record demonstrates
that, before the time period relevant to Mitchell’s application for benefits, she received
mental health treatment, including two hospitalizations in 2008. R. 87-88; R. 553.
In 2009, she continued to have mental health issues and considered inpatient
treatment, but ultimately decided against it. R. 324. When screened at MHMR of
Brazos Valley on December 12, 2011, she reported that she needed help getting
medications because she had lost her job when she broke her leg and had not been
able to afford the copayments for her medications.

She stated that she was

asymptomatic as long as she had her medications. R. 337.
In January 2012, Mitchell applied for benefits. She alleged that she had
schizoaffective disorder, mood swings, severe depression, and auditory and visual
hallucinations. R. 185, 202. On February 3, 2012, Joseph Roman, M.D., who had

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treated Plaintiff’s physical impairments for at least eighteen months, R. 346-78, filled
out a questionnaire regarding her mental impairments. Dr. Roman stated that he was
not treating Mitchell for a mental condition, but that he did recommend mental health
treatment. He further opined that her mental condition did not impose “more than
minimal limitations.” R. 346.
On February 16, 2012, Charles Lankford, Ph.D., reviewed the evidence of
Mitchell’s mental impairments on behalf of the SSA and concluded that her
schizoaffective disorder was “not severe.” R. 379-92. He listed her medications
including Seroquel, which generally is used to treat schizoaffective disorder and other
psychiatric conditions. Dr. Lankford stated that, despite Mitchell’s alleged symptoms,
her activities of daily living did not indicate sufficient limitations to establish
disability.
In May 2012, the SSA again reviewed the medical evidence and noted that,
although Mitchell alleged worsening symptoms since her application, she had no new
doctor visits and no new allegations or limitations. R. 395. In July 2012, Jerry
Loving, D.O., on behalf of SSA, performed a consultative examination on Mitchell
that was focused on her physical condition. R. 398-404. As part of a general review
of systems, Dr. Loving noted as follows:
The claimant was alert and had good eye contact and fluent speech. The
claimant’s mood was appropriate and the claimant had clear thought
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processes. The claimant’s memory was normal and concentration was
good. The claimant was oriented to time, place, person and situation.
R. 400.
Throughout 2012 Mitchell continued treatment at College Station Medical
Center for her physical impairments, R. 442-84, and also continued to see Joseph J.
Iero, M.D., who had performed the surgery for her leg fracture in August 2011. R.
417-41. She also was treated for her physical condition at St. Joseph in the 2011-12
period. R. 485-547. The record contains no evidence regarding Mitchell’s mental
health, other than the SSA assessment by Dr. Lankford and the brief statement by Dr.
Roman, between Mitchell’s MHMR screening in December 2011 and December 18,
2012.
On December 18, 2012, Mitchell was treated by Richard Neiman, M.D., at
MHMR Brazos Valley. R. 553-54. Dr. Neiman stated that Mitchell had presented
“supposedly for a psychiatric evaluation but she arrives not knowing what medication
she has been taking.” R. 553. He stated that she apparently had a diagnosis of
schizoaffective disorder and described recent use of Celexa, Seroquel, and Navane,
but wanted to discontinue use of Seroquel because she believed it made her
hallucinate more frequently and gain weight. Despite the difficulty of assessing
Mitchell’s condition without proper identification of her medications, Dr. Neiman
stated that he would discontinue Seroquel based on her strenuous objections. He
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noted that Mitchell appeared “somewhat restricted in intellectual capacities” and that
she was “particularly wanting for insight and good judgment.” R. 553. He ordered
lab work and set her for a complete psychiatric evaluation one month later. R. 554.
In February 2013, Mitchell’s records show that she presented twice at St.
Joseph’s emergency room for mental health treatment. First, on February 4-5,
Mitchell reported that she had been out of Seroquel for four days and was having
suicidal ideations. She was discharged with a Seroquel prescription. R. 497-509.
Several days later, on February 7-8, Mitchell returned to the emergency room and
reported that she was hearing voices telling her to “do bad things” and harm herself.
R. 486-92. She stated that she had been unable to get her prescription filled because
she could not afford it, that MHMR usually assisted her with medications, and that she
had an appointment at MHMR on February 12. The emergency room physician gave
her a dose of medication and a prescription for a four day supply, noting that she
clearly did not meet inpatient criteria at the time.
Mitchell apparently had an appointment with Dr. Neiman on February 12,
2013,1 but no treatment notes for this date are in the administrative record. Medical
records from other dates indicate that Mitchell was restarted on Seroquel at the

1

See R. 552 (treatment notes from May 7, 2013, reference appointment on Feb. 12,
2013).

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February appointment. See R. 549.
On May 7, 2013, Mitchell again was treated at MHMR, this time by a nurse
practitioner. R. 550-52. The treatment notes indicate that Mitchell was continued on
Celexa and Seroquel, and that she then was taking 800 mg of Seroquel daily. Mitchell
felt that her medications were “working well” and reported that her mood had been
reasonably stable for the past few months. She denied hallucinations. Her mental
status exam reflects that her speech was clear with a normal rate and quiet tone, her
mood was “essentially euthymic,” her affect was mildly blunted, her thought
processes were logical and goal directed, her attention, concentration, and memory
were intact, and her judgment and insight were good. Mitchell was instructed to
continue her medications, and the records indicate that she had a sufficient supply.
The records also note that Mitchell was scheduled for an appointment with Dr. Potts
on August 1, 2013. R. 550.
At her administrative hearing on July 23, 2013, Mitchell testified that she was
receiving mental health treatment at MHMR about once per month, and that her next
appointment was on August 1. R. 88.

She testified that her depression caused

problems with “thinking” and memory, and that she had suicidal thoughts only when
she was not taking her medication. R. 91-92.
The ALJ issued his opinion denying benefits on August 6, 2013. R. 47-64.
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On September 25, 2013, Robert Potts, M.D., of MHMR completed a
questionnaire regarding Mitchell’s mental impairments. R. 40-46. He reported that
he had treated Mitchell once, on August 1, 2013, less than one week before the ALJ’s
decision.2 Dr. Potts listed Mitchell’s diagnosis as schizoaffective disorder and opined
that her treatment and response had been “fair” and that her prognosis was “guarded.”
R. 41. He stated that Mitchell had a tendency to hallucinate when she was not taking
her medications.

He listed symptoms noted on her clinical exam, including

impairments in concrete thinking, nighttime hallucinations, and lack of insight and
judgment. R. 41. On a checklist, he noted multiple psychological symptoms
including sleep disturbance, decreased energy, difficulty concentrating or thinking,
suicidal thoughts, and hallucinations/delusion/paranoia. R. 42. He opined that she
had moderate restrictions in activities of daily living, marked restrictions in social
functioning, and marked restrictions in maintaining concentration, persistence, and
pace. R. 43. He further assessed “serious” limitations in all mental abilities, including
memory, carrying out instructions, and getting along with others. R. 44. He stated
that her condition would cause “weekly” absences and that Mitchell could not manage
her own benefits. R. 45. He assessed Mitchell with “severe dysfunction” and “severe
2

The treatment notes from Mitchell’s appointment with Dr. Potts on August 1, 2013,
which presumably form the basis for Dr. Potts’ opinions on the questionnaire, are not
in the administrative record.

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psychosis.” R. 46.
Other records submitted to the Appeals Council relate to the time period after
the ALJ’s decision denying benefits. R. 560-94. Records from MHMR in early 2014
indicate that, in general, Mitchell was compliant with her medications and that her
symptoms were controlled. R. 8-33.
II.

SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary

judgment, after adequate time for discovery and upon motion, against a party who
fails to make a sufficient showing of the existence of an element essential to the
party’s case, and on which that party will bear the burden at trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994) (en banc). “The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(a). See Celotex Corp., 477 U.S. at
322–23; Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008). “An issue is
material if its resolution could affect the outcome of the action. A dispute as to a
material fact is genuine if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” DIRECT TV Inc. v. Robson, 420 F.3d 532, 536 (5th
Cir. 2006) (internal citations and quotation marks omitted).
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III.

STANDARD OF REVIEW
Judicial review of the Commissioner’s denial of disability benefits is limited to

two inquiries: first, whether the final decision is supported by substantial evidence on
the record as a whole and, second, whether the Commissioner applied the proper legal
standards to evaluate the evidence. See Copeland v. Colvin, 771 F.3d 920, 923 (5th
Cir. 2014); Audler v. Astrue, 501 F.3d 446, 447 (5th Cir. 2007); Perez v. Barnhart,
415 F.3d 457, 461 (5th Cir. 2005); Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir.
2002). “Substantial evidence” is relevant evidence that a reasonable mind might
accept as adequate to support a conclusion. Copeland, 771 F.3d at 923; Audler, 501
F.3d at 447 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). It is more than
a mere scintilla and less than a preponderance. Copeland, 771 F.3d at 923; Perez, 415
F.3d at 461; Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000).
When applying the substantial evidence standard on review, the court
scrutinizes the record to determine whether such evidence is present. Perez, 415 F.3d
at 461; Myers v. Apfel, 238 F.3d 617, 619 (5th Cir. 2001); Greenspan v. Shalala, 38
F.3d 232, 236 (5th Cir. 1994). In determining whether substantial evidence of
disability exists, the court weighs four factors: (1) objective medical evidence; (2)
diagnoses and opinions; (3) the claimant’s subjective evidence of pain and disability;
and (4) the claimant’s age, education, and work history. Perez, 415 F.3d at 462 (citing
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Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991)). If the Commissioner’s findings
are supported by substantial evidence, they are conclusive and must be affirmed. Id.
at 461 (citing Richardson, 402 U.S. at 390); Watson v. Barnhart, 288 F.3d 212, 215
(5th Cir. 2002). Alternatively, a finding of no substantial evidence is appropriate if
no credible evidentiary choices or medical findings support the decision. Boyd v.
Apfel, 239 F.3d 698, 704 (5th Cir. 2001). The court may not, however, reweigh the
evidence, try the issues de novo, or substitute its judgment for that of the
Commissioner. Audler, 501 F.3d at 447; Masterson, 309 F.3d at 272. In short,
conflicts in the evidence are for the Commissioner, not the courts, to resolve. Perez,
415 F.3d at 461; Masterson, 309 F.3d at 272.
IV.

ANALYSIS
A.

Statutory Basis for Benefits

Mitchell applied for both Social Security disability insurance and SSI benefits.
Social Security disability insurance benefits are authorized by Title II of the Social
Security Act. The disability insurance program provides income to individuals who
are forced into involuntary, premature retirement, provided they are both insured and
disabled, regardless of indigence. 42 U.S.C. § 423(c) (definition of insured status); 42
U.S.C. § 423(d) (definition of disability).
SSI benefits are authorized by Title XVI of the Social Security Act, and provide
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an additional resource to the aged, blind and disabled to assure that their income does
not fall below the poverty line. 20 C.F.R. § 416.110. Eligibility for SSI is based on
proof of disability and indigence. 42 U.S.C. § 1382c(a)(3) (definition of disability);
42 U.S.C. §§ 1382(a) (financial requirements). A claimant applying to the SSI
program cannot receive payment for any period of disability predating the month in
which he applies for benefits, no matter how long he has actually been disabled.
Brown v. Apfel, 192 F.3d 492, 495 n.1 (5th Cir. 1999); 20 C.F.R. § 416.335. Thus, the
month following an application fixes the earliest date from which SSI benefits can be
paid. Eligibility for SSI, unlike eligibility for Social Security disability benefits, is not
dependent on insured status.
Although these are separate and distinct programs, applicants to both programs
must prove “disability” under the Act, which defines disability in virtually identical
language. Under both provisions, “disability” is defined as the inability to “engage
in any substantial gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than twelve months.” 42
U.S.C. § 423(d)(1)(A) (disability insurance); 42 U.S.C. § 1382c(a)(3)(A) (SSI). The
law and regulations governing the determination of disability are the same for both
programs. Greenspan, 38 F.3d at 236.
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B.

Determination of Disability

When determining whether a claimant is disabled, an ALJ must engage in a
five-step sequential inquiry, as follows: (1) whether the claimant is currently engaged
in substantial gainful activity; (2) whether the claimant has a severe impairment; (3)
whether the claimant’s impairment meets or equals a listed impairment in Appendix
1 of the regulations; (4) whether the claimant is capable of performing past relevant
work; and (5) whether the claimant is capable of performing any other work. Perez,
415 F.3d at 461; Newton, 209 F.3d at 453.3 The claimant has the burden to prove
disability under the first four steps. Perez, 415 F.3d at 461; Myers, 238 F.3d at 619.
If the claimant successfully carries this burden, the burden shifts to the Commissioner
at Step Five to show that the claimant is capable of performing other substantial
gainful employment that is available in the national economy. Perez, 415 F.3d at 461;
Masterson, 309 F.3d at 272; Greenspan, 38 F.3d at 236. Once the Commissioner
makes this showing, the burden shifts back to the claimant to rebut the finding. Perez,
415 F.3d at 461; Newton, 209 F.3d at 453. 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. Perez, 415 F.3d at 461 (citing 20 C.F.R. § 404.1520(a)).
3

The Commissioner’s analysis at steps four and five is based on the assessment of the
claimant’s residual functional capacity (“RFC”), or the work a claimant still can do
despite his or her physical and mental limitations. Perez, 415 F.3d at 461-62. The
Commissioner assesses the RFC before proceeding from Step Three to Step Four. Id.

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In this case, at Step One, the ALJ determined that Mitchell had not engaged in
substantial gainful activity since January 1, 2012, her alleged onset date.4 The ALJ
found at Step Two that Mitchell had two severe impairments: neuropathy and obesity.
He determined that Mitchell’s schizoaffective disorder was medically determinable
but was not a severe impairment. At Step Three, the ALJ concluded that Mitchell’s
impairments, considered singly or in combination, did not meet or medically equal a
listed impairment in the relevant federal regulations.
Before proceeding to Step Four, the ALJ assessed Mitchell’s residual functional
capacity (“RFC”) and found that Mitchell could perform light work with certain
limitations:
[Mitchell] has the [RFC] to perform light work . . . .except she is able to
stand or sit each for 4 hours in an 8-hour day with normal breaks. She
must be able to alternate positions, sitting to standing, at will. She is
limited to occasional climbing of stair[s] and may never climb ropes,
ladders, or scaffolds. She is limited to occasional balancing, stooping,
kneeling, crouching, and crawling. She is limited to detailed but not
complex tasks.
R.54. At Step Four, the ALJ determined that Mitchell was unable to perform her past
relevant work as a correctional officer and certified nursing assistant.

Given

Mitchell’s age, education, work experience, and RFC, the ALJ determined at Step
Five that Mitchell was capable of performing jobs that exist in significant numbers in

4

Mitchell met the insured status requirements of the SSA through December 31, 2015.

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the national and regional economy, in particular, office helper, telephone information
clerk, and routing clerk. He therefore concluded that Mitchell was not disabled from
January 1, 2012, through August 6, 2013, the date of his decision.
C.

Plaintiff’s Argument for Reversal

Plaintiff argues that this case should be remanded to the Commissioner based
on Dr. Potts’ questionnaire, which was submitted to the Appeals Council after the
ALJ’s denial of benefits.
As a preliminary matter, because Plaintiff submitted Dr. Potts’ questionnaire
to the Appeals Council on October 7, 2013, see R. 40, the questionnaire is properly
before this Court and may be considered in this civil action. Evidence submitted to
the Appeals Council is part of the record before Commissioner and must be
considered by this Court, even when the evidence was not presented to the ALJ.
Higginbotham v. Barnhart, 405 F.3d 332, 337-38 (5th Cir. 2005) (citing 42 U.S.C.
§ 405(g); 20 C.F.R. § 404.970(b)).
Remand based on late-submitted evidence is appropriate only when the plaintiff
demonstrates that the evidence is both new and material. See Ripley v. Chater, 67
F.3d 552, 555 (5th Cir. 1995); Bradley v. Bowen, 809 F.2d 1054, 1058 (5th Cir. 1987);
Avery v. Colvin, 605 F. App’x 278, 284-85 (5th Cir. 2015); Thomas v. Colvin, 587 F.

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App’x 162, 165 (5th Cir. 2014).5 In order to be material, the evidence must “relate to
the time period for which benefits were denied,” and not to a later-acquired disability
or a subsequent deterioration of a previous condition. Thomas, 587 F. App’x at 165
(internal quotation marks and citations omitted). In addition, to show materiality, a
plaintiff must show that the new evidence would have changed the outcome of the
administrative proceedings. Some Fifth Circuit authority states that materiality
requires a “reasonable probability that the new evidence would change the outcome”
of the Commissioner’s decision, see Ripley, 67 F.3d at 555, while other decisions
articulate the materiality standard as requiring only a “reasonable possibility” of a
changed outcome. See Thomas, 587 F. App’x at 165 (emphasis added) (citing Bradley,
809 F.2d at 1058). The discrepancy in the materiality standard need not be resolved
for disposition of the case at bar because, as held below, Mitchell has not shown either
a reasonable possibility or probability of a changed outcome.
Put another way, the question for the reviewing court is whether the record as
a whole, including the new evidence, still contains substantial evidence supporting the
Commissioner’s findings. Higginbotham v. Barnhart, 163 F. App’x 279, 281–82 (5th
Cir. 2006).
5

Ripley and Bradley, which are reported cases, analyzed the effect of evidence
obtained after the Appeals Council had rendered its decision and the Commissioner’s
determination was final. Avery and Thomas address evidence submitted to the
Appeals Council after the ALJ’s determination, as in the case at bar.

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In this case, Dr. Potts’ questionnaire was “new,” because it was completed and
submitted to the Appeals Council after the ALJ’s ruling. The questionnaire also
pertained to the relevant time period, i.e., between January 2012 and August 6, 2013,
because Dr. Potts stated that he based his answers on his examination of Plaintiff on
August 1, 2013.
The remaining issue is whether Plaintiff has demonstrated “materiality” by
showing a reasonable possibility or probability that the questionnaire from Dr. Potts
would have changed the outcome of the Commissioner’s decision. As recounted
above, Dr. Potts opined on the questionnaire, based on his one examination of her, that
Mitchell suffered from “severe psychosis” and “severe dysfunction” due to
schizoaffective disorder, that Mitchell’s response to treatment had been fair, and that
her prognosis was guarded. He noted marked restrictions in social functioning and
mental abilities. He did not state whether medication controlled her symptoms, other
than to indicate that she tended to hallucinate when not medicated. R. 41.
The ALJ’s denial of benefits to Mitchell for her schizoaffective disorder was
based on his conclusion at Step Two that her schizoaffective order was not “severe.”
R. 52-53.
[T]he undersigned finds that the claimant’s schizoaffective disorder is
being treated and controlled with medication and does not cause
functional limitations To be a severe impairment the medical evidence
must establish more than a slight abnormality or combination of slight
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abnormalities that would have more than a minimal effect on an
individual’s ability to work. The impairment must significantly limit a
person’s physical or mental ability to do basic work activities (SSR 8528) for a continuous period of at least twelve months. The undersigned
finds that the claimant’s schizoaffective disorder is “not severe” (20 CFR
404.1520(a) and (c) and 416.920(a) and (c) and SSR 96-3p) in that it
causes no vocationally relevant limitations.
R. 53.6 The twelve-month “duration requirement” recited by the ALJ is explicit in the
federal regulations.7
In making his Step Two holding, the ALJ relied on Mitchell’s treatment records
from MHMR in May 2013, which recorded a mental status examination that was
within normal limits, and the absence of hallucinations and suicidal ideations. R. 53
(citing R. 552). The May 2013 treatment notes indicate that Mitchell was currently
taking her medications and had a sufficient supply remaining, and that she felt the
medications were “working well for her.” R. 552. The ALJ also relied upon the
6

See id. at 52 (“‘An impairment can be considered as 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, irrespective of age,
education, or work experience.’” (quoting Stone v. Heckler, 752 F.2d 1099 (5th Cir.
1985)).

7

Federal regulations regarding the Step Two determination provide, “If you do not
have a severe medically determinable physical or mental impairment that meets the
duration requirement in § 404.1509, or a combination of impairments that is severe
and meets the duration requirement, we will find that you are not disabled.” 20
C.F.R. § 404.1520(a)(4)(ii) (severity requirement for Title II benefits). See 20 C.F.R.
§ 416.920(a)(4)(ii) (same standard for Title XVI benefits). The “duration
requirement” provides that an impairment must have lasted or be expected to last for
“a continuous period of at least 12 months.” 20 C.F.R. § 1509 (Title II); 20 C.F.R.
§ 416.909 (Title XVI).

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notation by Jerry Loving, D.O., who conducted a consultative physical examination
on July 14, 2012, that Mitchell had good eye contact, fluent speech, appropriate mood,
clear thought processes, normal memory, good concentration, and was oriented to
time, person, place and situation. R. 53 (citing R. 400). He noted that, when Mitchell
presented to the emergency room in February 2013 and complained that she was
hearing voices, she had been unable to fill her prescription. The emergency physician
noted that her condition was exacerbated because she had not taken her medications
and gave her the prescribed medication. R. 53 (citing R. 486-87, 489).8
These records cited by the ALJ are inconsistent with Dr. Potts’ answers in the
questionnaire, and with certain other medical evidence in the record indicating more
severe psychiatric symptoms. See, e.g., R. 553-54 (records of treatment by Dr.
Neiman in December 2012 indicate hallucinations, poor insight and judgment, and
general confusion).9
This Court must consider the record as a whole and whether substantial
8

The ALJ also mentioned Mitchell’s mental impairments in the later stages of his
analysis when assessing her RFC. See R. 55 (Mitchell claims she has problems
thinking, concentrating, and focusing secondary to depression and says she has
suicidal thoughts when she fails to take her medication); R. 57 (the consultative
psychological examination by Charles Lankford, Ph.D., supports the finding that
Mitchell’s mental impairments are not severe)

9

As noted above, some relevant medical records are not in the administrative record,
including Dr. Potts’ examination of Mitchell on August 1, 2013, and Dr. Neiman’s
examination in on February 12, 2013. However, Plaintiff was represented by counsel
during administrative proceedings and made no request to supplement the record.

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evidence still supports the ALJ’s decision when the new evidence is considered.
Higginbotham, 163 F. App’x at 281–82. As stated previously, “substantial evidence”
is less than a preponderance, Copeland, 771 F.3d at 923, and a finding that substantial
evidence is lacking “is appropriate only if no credible evidentiary choices or medical
findings support the [Commissioner’s] decision.” Boyd, 239 F.3d at 704 (internal
quotation marks and citations omitted).
In this case, the ALJ’s holding was supported by substantial evidence, including
the MHMR records from May 2013 and Plaintiff’s own statements indicating that her
schizoaffective symptoms are controlled when she is compliant with her medications.
See, e.g., R. 337 (Plaintiff reported at MHMR on December 12, 2011, that she was
asymptomatic as long as she had medication); R. 488-89, 501 (Plaintiff reported at the
emergency room in February 2013 that she was having auditory hallucinations and
suicidal thoughts because she had run out of her medication); R. 552 (Plaintiff
reported at MHMR on May 7, 2013, that her symptoms were controlled and that her
current medications were working well); R. 92 (Plaintiff testified at her administrative
hearing on July 23, 2013, that she only had suicidal thoughts when she did not take
her medication). This conclusion remains supported by substantial evidence even
when the Court considers Dr. Potts’ questionnaire. First, the questionnaire’s weight
is diminished because it is not accompanied by any records of Dr. Potts’ examination

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of Mitchell on August 1, 2013, or any other date. Second, Dr. Potts’ opinion
regarding Plaintiff’s condition fails to indicate whether the symptoms he describes
were present when Plaintiff complied with her medications, or only when she was not
medicated.
Most importantly, even assuming that the new evidence from Dr. Potts could
establish a severe impairment on August 1, 2013, the regulations require a showing
of an impairment lasting at least twelve months. 20 C.F.R. § 404.1520(a)(4)(ii); id.
§ 416.920(a)(4)(ii). Records cited by the ALJ from May 2013, just three months
earlier, indicate that no impairment then was present. Rather, the administrative
record appears to show that, in the period between December 2012 and August 2013,
Mitchell’s symptoms worsened dramatically when she did not take her medications,
and improved when she did. The Court further notes that the administrative record
contains no evidence of mental health treatment or impairment for significant portions
of the relevant period, including from December 2011 through December 2012.
Given the absence of any mental health records for most of 2012 and the
records indicating adequate functioning when medicated in May 2013, the record as
a whole contains substantial evidence supporting the ALJ’s determination that
Mitchell’s schizoaffective disorder was not a “severe impairment” that lasted for a
continuous period of twelve months. Plaintiff has failed to show a “reasonable

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possibility” that Dr. Potts’ questionnaire would have changed the outcome of the
ALJ’s decision. See Bradley, 809 F.2d at 1058. It therefore follows that, if this Court
were to apply the more stringent standard requiring Plaintiff to show a “reasonable
probability” of a changed outcome, see Ripley, 67 F.3d at 555, Plaintiff’s showing also
would be insufficient.
Summary judgment is granted for Defendant.
V.

CONCLUSION
For the foregoing reasons, it is hereby
ORDERED that Plaintiff’s Motion for Summary Judgment [Doc. # 8] is

DENIED. It is further
ORDERED that Defendant’s Cross Motion for Summary Judgment [Doc. # 9]
is GRANTED.
A separate final judgment will issue.
SIGNED at Houston, Texas, this 25th day of November, 2015.

NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

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