Prather v. Astrue
MEMORANDUM OPINION AND ORDER. Signed by Judge Andrew W. Austin. (dm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
CAROLYN W. COLVIN,
COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION §
MEMORANDUM OPINION AND ORDER
Before the Court are: Plaintiff’s Complaint seeking reversal of the Social Security
Administration’s final decision (Dkt. No. 5); Plaintiff’s Brief in Support of Claim (Dkt. No. 18); and
Defendant’s Brief in Support of the Commissioner’s Decision (Dkt. No. 19). Also before the Court
is the Social Security record filed in this case (cited as “Tr.”).
I. General Background
Plaintiff Elizabeth Prather (“Prather”) filed her application for disability insurance benefits
on February 18, 2010, alleging a disability onset date of June 4, 2008. Tr. at 138.
Administration denied her claim initially and again upon her request for reconsideration. Id. at 12.
An Administrative Law Judge (“ALJ”) held a hearing on this matter on March 21, 2011. Id. Prather,
a medical expert, and a vocational expert testified at the hearing, and Prather was represented by an
attorney. Id. The ALJ determined that Prather was not disabled as defined by the statute from June
4, 2008 through the date of the ALJ’s decision. Id. at 20.
II. Definitions and Legal Standards
The Social Security Act defines “disability” as an “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment . . . which
has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C.
§ 423(d)(1)(A). To determine if a claimant is disabled the Commissioner uses a five-step analysis:
a claimant who is working, engaging in a substantial gainful activity, will not be
found to be disabled no matter what the medical findings are;
a claimant will not be found to be disabled unless he has a “severe impairment”;
a claimant whose impairment meets or is equivalent to an impairment listed in
Appendix 1 of the regulations will be considered disabled without the need to
consider vocational factors;
a claimant who is capable of performing work that he has done in the past must be
found “not disabled”; and
if the claimant is unable to perform his previous work as a result of his impairment,
then factors such as his age, education, past work experience, and residual functional
capacity must be considered to determine whether he can do other work.
Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994); see also 20 C.F.R. § 404.1520. A finding of
disability or no disability at any step “is conclusive and terminates the analysis.” Lovelace v. Bowen,
813 F.2d 55, 58 (5th Cir. 1987). The claimant has the burden of proof for the first four steps;
however, at step five, the burden initially shifts to the Commissioner to identify other work the
applicant is capable of performing. Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990). If the
Commissioner “fulfills his burden of pointing out potential alternative employment, the burden then
shifts back to the claimant to prove that he is unable to perform the alternate work.” Id. (internal
quotation marks omitted).
Judicial review of the Commissioner’s final decision under the Social Security Act, 42
U.S.C. § 405(g), is limited to two inquiries: (1) whether substantial evidence supports the
Commissioner’s decision, and (2) whether the Commissioner applied the correct legal standards.
Kinash v. Callahan, 129 F.3d 736, 738 (5th Cir. 1997). Substantial evidence is more than a scintilla
of evidence but less than a preponderance—in other words, “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Martinez v. Chater, 64 F.3d 172, 173 (5th
Cir. 1995) (internal quotation marks omitted). The Court considers “four elements of proof when
determining whether there is substantial evidence of disability: (1) objective medical facts; (2)
diagnoses and opinions of treating and examining physicians; (3) the claimant’s subjective evidence
of pain and disability; and (4) [the claimant’s] age, education, and work history.” Id. at 174.
However, a reviewing court “may not reweigh the evidence, try the issues de novo, or substitute [its]
judgment for that of the [Commissioner].” Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994).
If the Court finds substantial evidence to support the decision, the Court must uphold the decision.
See Selders, 914 F.2d at 617 (“If the . . . findings are supported by substantial evidence, they are
conclusive and must be affirmed.”); see also 42 U.S.C. § 405(g).
III. The ALJ’s Findings
The ALJ employed the regulations’ five-step sequential evaluation process to determine
whether Prather was disabled. Tr. at 12-14. At the first step, the ALJ determined that Prather had
not engaged in substantial gainful activity since June 4, 2008. Id. at 14. At the second step, relying
on Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985), the ALJ found that Prather suffered from the
“severe impairments” of “migraine headaches, major depression, [and] dizziness.” Id. At step three,
the ALJ found that, considered separately and in combination, Prather’s impairments did not meet
or medically equal the severity criteria for any of the impairments listed in 20 C.F.R. Pt. 404, Subpt.
P, App. 1 (20 C.F.R. 404.1520(d), 404.1525, and 404.1526). Id. The ALJ determined that the
Plaintiff had the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R.
§ 404.1567(b). Id. at 15. In addition, the ALJ found that Prather “can occasionally climb ramps and
stairs, balance, stoop, kneel, crouch, and crawl” and that she “cannot climb ropes, ladders or
scaffolds; nor should she work at unprotected heights or around moving and dangerous machinery.”
Id. at 15. The ALJ also found that Prather retains the mental RFC “to perform simple, routine,
repetitive tasks.” Id. At step four, the ALJ determined that the Plaintiff’s RFC would prevent her
from performing her past relevant work. Id. at 19. Considering Prather’s age, education, work
experience, and RFC, the ALJ found at step five that Prather was capable of performing other jobs
that exist in significant numbers in the national economy. Id. Accordingly, the ALJ found that
Prather was not disabled as defined by the Act. Id. at 20.
Although Prather explicitly identifies only one issue in her brief, it appears that there are
three issues raised by her brief: (1) whether substantial evidence supports the ALJ’s mental RFC
assessment; (2) whether substantial evidence supports the ALJ’s step five finding that Prather could
perform other work; and (3) whether the ALJ committed reversible error by failing to meet the
narrative discussion requirement of SSR 96-8p, Titles II & XVI: Assessing Residual Functional
Capacity in Initial Claims, 1996 WL 374184 (July 2, 1996). See Dkt. No. 18 at 2-6.
The ALJ’s Mental RFC Assessment
Prather argues that the ALJ’s mental RFC finding is not supported by substantial evidence
because its language limiting Prather to “simple, routine, repetitive tasks” is too “broad” to
accommodate Prather’s moderate limitation in concentration, persistence, and pace. Dkt. No. 18 at
3-5. As an initial matter, Plaintiff is correct in stating that the ALJ concluded Prather had a moderate
limitation in this area. See Dkt. No. 18 at 3; Tr. at 15. However, since a limitation in concentration,
persistence, and pace is one of the “paragraph B” criteria that are used at steps 2 and 3 of the
evaluation process, the Commissioner is correct in asserting that such a finding does not dictate a
specific mental RFC assessment under the Social Security regulations. See Dkt. No. 19 at 4-5.
Instead, SSR 96-8p specifically states:
The adjudicator must remember that the limitations identified in the “paragraph B”
. . . criteria are not an RFC assessment but are used to rate the severity of mental
impairment(s) at steps 2 and 3 of the sequential evaluation process. The mental RFC
assessment used at steps 4 and 5 of the sequential evaluation process requires a more
detailed assessment by itemizing various functions contained in the broad categories
found in paragraphs B and C . . . .
1996 WL 374184 at *4. The ALJ also noted this distinction in her decision. Tr. at 15. On the other
hand, the Social Security regulations make clear that an ALJ must consider all of the relevant
evidence in the claimant’s file when formulating an RFC; such evidence necessarily includes
“paragraph B” limitations. SSR 96-8p, 1996 WL 374184 at *5. Contrary to the Plaintiff’s
assertions, however, and as explained more fully below, the record establishes that the ALJ
considered all of this evidence in determining Prather’s RFC.
In support of her argument, Prather chiefly relies on a case from the United States District
Court for the Northern District of Texas, Otte v. Comm’r, Soc. Sec. Admin., No. 3:08-CV-2078-P
(BF), 2010 WL 4363400 (N.D. Tex. Oct. 18, 2010), as well as several other cases from federal courts
outside the Fifth Circuit. See Dkt. No. 18 at 4-5. In Otte, which is not binding on this Court, the
court found that the mere restriction to “unskilled work” was insufficient to accommodate a
moderate limitation in concentration, persistence, and pace, and that in making such a finding, the
ALJ improperly assumed the role of a vocational expert. 2010 WL 4363400 at *7. In contrast, in
this case the ALJ limited Prather’s mental RFC to “simple, routine, repetitive tasks;” this limitation
is much more specific and detailed than the one at issue in Otte. Tr. at 15. Furthermore, as the Otte
court stated, the relative skill level associated with a given job “does not address whether a job
entails only simple repetitive tasks” and thus “many jobs within this range [of unskilled work]
require more than the mental capacity to follow simple instructions.” 2010 WL 4363400 at *7. This
problem does not arise here since the ALJ specifically limited Prather to “simple, routine, repetitive
tasks.” Tr. at 15. Furthermore, multiple decisions from courts in the Fifth Circuit with facts more
closely resembling those in this case have upheld the ALJ’s RFC assessments. For example, in an
unpublished opinion, the Fifth Circuit held that an RFC assessment that concluded the plaintiff
“would be able to understand, remember, and carry out routine step instructions and respond
appropriately to supervisors and coworkers in jobs that do not require independent decision making”
adequately accommodated the plaintiff’s moderate limitation in concentration, persistence, and pace.
Herrera v. Comm’r of Soc. Sec., 406 F. App’x 899, 904 (5th Cir. 2010) (unpublished) (per curiam).
In an earlier decision, the same court concluded that “restrictions to rare public interaction, low
stress, and simple, one-to two-step instructions reflect that the ALJ reasonably incorporated [the
plaintiff’s] moderate concentration, persistence, and pace limitations.” Bordelon v. Astrue, 281 Fed.
Appx. 418, 423 (5th Cir. 2008) (unpublished) (per curiam). Although these opinions have limited
precedential weight, they are instructive. Furthermore, these decisions mirror those of several
district courts within this Circuit. For example, Judge Stickney of the Northern District of Texas
concluded that a mental RFC limiting the plaintiff to “simple, routine tasks” was supported by
substantial evidence even though the plaintiff had a moderate limitation in concentration,
persistence, and pace. Barr v. Astrue, No. 2012 WL 2358307, *4-5 (N.D. Tex. June 21, 2012).
Similarly, Judge Guaderrama of this district upheld an RFC assessment that found the plaintiff could
perform “the full range of medium work” despite her mild limitation in concentration, persistence,
and pace. Acosta v. Astrue, 865 F. Supp. 2d 767, 790 (W. D. Tex. 2012).1
Lastly, as the Commissioner points out, the ALJ’s opinion makes clear that she did consider
all of the relevant evidence, including Prather’s moderate limitation in concentration, persistence,
and pace, in reaching her RFC assessment. See Dkt. No. 19 at 6-7. For example, the ALJ’s opinion
states, “the following residual functional capacity assessment reflects the degree of limitation the
undersigned has found in the ‘paragraph B’ mental function analysis.” Tr. at 15. Furthermore, as
the Commissioner notes, the ALJ supported her mental RFC findings by referencing the notes of a
physician and a physician assistant who examined Prather between September 2008 and May 2010.
Dkt. No. 19 at 6-7; Tr. at 18. Taken together, this evidence supports the ALJ’s conclusion that
Prather retains the mental ability to complete “simple, routine, repetitive tasks” notwithstanding her
moderate limitation in concentration, persistence, and pace. Tr. at 15.
In conclusion, the undersigned finds that, contrary to the Plaintiff’s assertion, the ALJ’s
mental RFC assessment is supported by substantial evidence in the record and adequately
The weight of authority from district courts within the Fifth Circuit supports the
Commissioner’s position on this issue. Longoria v. Colvin, 2014 WL 2777473, *7 (N.D. Tex. May
21, 2014); Cornejo v. Colvin, 2013 WL 2539710, *9 (W.D. Tex. June 7, 2013); Westover v. Astrue,
2012 WL 6553102, *9 (N.D. Tex. Nov. 16, 2012); Jackson v. Astrue, No. 2011 WL 4943547, *8
(N.D. Tex. Aug. 23, 2011); Patterson v. Astrue, 2009 WL 3110205, *5 (N.D. Tex. Sept. 29, 2009).
Most of the decisions from district courts within this Circuit that appear to at least nominally support
the Plaintiff’s position involved broad or general RFC assessments more akin to the one at issue in
Otte, distinguished above. See, e.g., Owen v. Astrue, 2011 WL 588048, *14 (N.D. Tex. Feb. 9, 2011;
Webb v. Astrue, 2010 WL 1644898, *13 (N.D. Tex. Mar. 2, 2010); Chapa v. Astrue, 2008 WL
952947, *6 (N.D. Tex. Apr. 8, 2008). C.f., Eastham v. Comm’r of Soc. Sec. Admin., 2012 WL
691893, *8-9 (N.D. Tex. Feb. 17, 2012); Voyles v. Comm’r of Soc. Sec. Admin., 2011 WL 825711,
*9 (N.D. Tex. Feb. 16, 2011).
accommodates Prather’s moderate limitation in concentration, persistence, and pace. Accordingly,
Prather is not entitled to relief on this ground.2
The ALJ’s Step Five Conclusion
In a related claim, Prather asserts that the ALJ erred because substantial evidence does not
support her step five finding that Prather could perform other work since this finding stemmed from
a hypothetical question to the vocational expert that included the “simple, routine, repetitive”
limitation, which Plaintiff believes is inadequate as described above. Dkt. No. 18 at 4-5. For
reasons discussed more fully below, this argument also fails.
The Fifth Circuit has established the following test for hypothetical questions posed to
vocational experts in these circumstances:
Unless  the hypothetical question posed to the vocational expert by the ALJ can
be said to incorporate reasonably all disabilities of the claimant recognized by the
ALJ, and  the claimant or his representative is afforded the opportunity to correct
deficiencies in the ALJ’s question by mentioning or suggesting to the vocational
expert any purported defects in the hypothetical questions (including additional
disabilities not recognized by the ALJ’s findings and disabilities recognized but
omitted from the question), a determination of non-disability based on such a
defective question cannot stand.
Bowling, 36 F.3d at 436. As articulated above, the ALJ considered all of the relevant evidence,
including Prather’s moderate limitation in concentration, persistence, and pace, in reaching the
The undersigned notes that some courts outside this Circuit have held that RFC assessments
similar to the one at issue in this case are insufficient to accommodate limitations in concentration,
persistence, and pace. See, e.g., Ramirez v. Barnhart, 372 F.3d 546, 554 (3d Cir. 2004); Ealy v.
Comm’r of Soc. Sec., 594 F.3d 504, 516 (6th Cir. 2010); Stewart v. Astrue, 561 F.3d 679, 684-85
(7th Cir. 2009) (per curiam); Brink v. Comm’r Soc. Sec. Admin., 343 F. App’x 211, 212 (9th Cir.
2009); Wiederholt v. Barnhart, 121 F. App’x 833, 839 (10th Cir. 2005). This Court is not bound by
these opinions. See Cornejo, 2013 WL 2539710 at *9 (“In an unpublished Fifth Circuit opinion
[Bordelon], the reasoning in Wiederholt was rejected . . . . [The Bordelon] reasoning is persuasive;
the limitations on which the RFC is based are not required to be included verbatim in the RFC or in
a hypothetical to the vocational expert.”).
mental RFC assessment. Thus, the mental RFC assessment represents an acceptable conclusion
regarding the Plaintiff’s disabilities, and by using the precise RFC language in formulating the
hypothetical, the ALJ satisfied the first part of the Bowling test. The record establishes that the
second part of the Bowling test is also satisfied since Prather was represented by an attorney when
she appeared before the ALJ and the ALJ explicitly gave Prather’s attorney an opportunity to ask the
vocational expert questions after she presented the hypothetical question. See Tr. at 12, 63-65.
In summary, because the ALJ based her step five finding that Prather could perform other
work on a vocational expert’s testimony in response to a hypothetical question that meets the two
requirements established for such questions in Bowling, Prather’s claim that the finding lacks
substantial evidence is without merit.
The ALJ’s Narrative Discussion
Lastly, Prather argues that the ALJ committed reversible error in reaching her mental RFC
assessment by failing to meet the narrative discussion requirement of SSR 96-8p. Dkt. No. 18 at 5-6.
As the Plaintiff states, an ALJ must consider the following “work-related mental activities” in
reaching an RFC assessment: “the ability to understand, carry out, and remember instructions; use
judgment in making work-related decisions; respond appropriately to supervision, co-workers and
work situations; and deal with changes in a routine work setting.” Id. at 3-4; see also SSR 96-8p,
1996 WL 374184 at *1, 6. However, as the United States District Court for the Northern District
of Texas concluded, “the narrative discussion requirements [of SSR 96-8p] do not obligate the ALJ
to discuss each of the four work-related mental activities,” as Prather implies. Walton v. Astrue,
2011 WL 195975, *9 (N.D. Tex. Jan. 20, 2011). Instead, SSR 96-8p specifically requires an ALJ
to “assess [the plaintiff’s] work-related abilities on a function-by-function basis” and then“include
a narrative discussion describing how the evidence supports each conclusion” in the RFC. 1996 WL
374184 at *1, 7. Notably, these two requirements are discussed separately in SSR 96-8p. See id.
The Plaintiff has put forward no evidence that the ALJ failed to fulfill these separate
requirements in her case, and instead, the ALJ’s opinion makes clear that she did do so. For
example, in her opinion the ALJ explicitly cites SSR 96-8p and the fact that the RFC evaluation
“requires a more detailed assessment by itemizing various functions contained in the broad
categories found in paragraph B . . . .” Tr. at 15. The ALJ also stipulated that she made her RFC
assessment “[a]fter careful consideration of the entire record.” Id. Then, with regards to Prather’s
alleged mental health impairments, the ALJ supported her conclusion that “the symptoms [Prather]
alleges prevent her from being able to work have improved and are controlled with prescribed
medications” by referencing the notes of a treating physician, a treating physician assistant, and the
medical expert who testified in the case. Id. at 18. These notes offer substantial evidence to support
the ALJ’s conclusion. For example, the treating physician, Arpan Desai, D.O., made the following
comments regarding Prather’s neuropsychiatric status on October 20, 2008:
Mental status exam performed with findings of - no evidence of hallucinations,
delusions, obsessions or homicidal/suicidal ideation. The patient’s mood and affect
are described as - normal. Judgment and Insight - Insight is appropriate concerning
matters relevant to self. Thought Processes/Cognitive Function - appropriate fund
Id. at 255. Similarly, the physician assistant who regularly treated Prather, Ralph Hadley, found that
she had “appropriate affect and demeanor; normal psychomotor function; normal speech pattern;
[and] normal thought and perception” on July 10, 2009, notwithstanding his assessment that she
suffered from a “[d]epressive disorder not elsewhere classified.” Id. at 318. Hadley’s notes from
the same visit list several “Current Medications,” and in the “Plan” portion Hadley wrote,
“FOLLOW-UP: Patient advised to return to clinic if symptoms worsen, change or persist, if [she]
has any problem with medications, or has any other medical reason to be seen. 4 wks. Continue
current medications . . . .” Id. at 317-18. Hadley made similar findings regarding Prather’s
psychiatric state in his notes from visits on October 22, 2008; January 6, 2009; March 9, 2009;
August 13, 2009; September 24, 2009; December 1, 2009; January 12, 2010; February 12, 2010;
March 25, 2010; April 26, 2010; May 28, 2010; July 15, 2010; and September 9, 2010. Id. at 330,
333, 337, 320, 322, 323, 325, 327, 384, 386-87, 388, 391, 393. Lastly, the ALJ clearly took into
consideration the medical expert’s testimony regarding Prather’s mental impairments since the
expert testified she would limit the Plaintiff to “simple” tasks out of an “abundance of caution,” and
the ALJ accordingly limited Prather to “simple, routine, repetitive tasks” in her RFC assessment.
Id. at 63, 15.
In short, the Social Security regulations require an ALJ to (1) assess the work-related mental
activities and (2) provide a narrative discussion connecting specific evidence in the record to his or
her conclusions. SSR 96-8p, 1996 WL 374184 at *1, 7. The evidence cited above directly relates
to the Plaintiff’s “ability to understand, carry out, and remember instructions; use judgment in
making work-related decisions; respond appropriately to supervision, co-workers and work
situations; and deal with changes in a routine work setting,” and thus it is clear that the ALJ fulfilled
her obligation to assess the work-related mental activities as required by SSR 96-8p. Dkt. No. 18
at 3-4. Furthermore, the ALJ provided the required narrative discussion by connecting pieces of this
evidence to her conclusion that Prather’s alleged symptoms “have improved and are controlled with
prescribed medications.” Tr. at 18. For these reasons, the Plaintiff has failed to establish that she
is entitled to relief based on the ALJ’s failure to comply with the narrative discussion requirement
of SSR 96-8p.
In summary, the ALJ applied the proper legal standards to Prather’s case, and her findings
are supported by substantial evidence in the record. More specifically, the ALJ (1) accommodated
Prather’s moderate limitation in concentration, persistence, and pace in her mental RFC assessment;
(2) relied on substantial evidence when she concluded that Prather could perform other work at step
five of the evaluation process; and (3) complied with the narrative discussion requirement of SSR
96-8p. As such, the Plaintiff has failed to establish grounds for relief.
For the foregoing reasons, it is ORDERED that the decision of the Commissioner of the
Social Security Administration to deny disability insurance benefits to Elizabeth Prather is hereby
SIGNED this 21st day of August, 2014.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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