Herron v. Colvin
ORDER ADOPTING REPORT AND RECOMMENDATIONS for 15 Report and Recommendations. IT IS FINALLY ORDERED that the decision of the Commissioner of the Social Security Administration to deny benefits to Brittany N. Herron is AFFIRMED. Signed by Judge Sam Sparks. (dm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
BRITTANY N HERRON,
CAUSE NO.: A-16-CA-00425-SS
Commissioner of the Social Security
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause,
and specifically Plaintiff Brittany N. Herron's Brief on Review of the Denial of Benefits by the
Commissioner of Social Security [#12], Defendant Carolyn W. Colvin, Acting Commissioner of
the Social Security Administration's Brief in Support of the Commissioner's Decision [#14], the
Report and Recommendation of the United States Magistrate Judge [#15], and Plaintiffs
Objections to the Report and Recommendation [#16]. Having reviewed the documents, the
governing law, and the file as a whole, the Court now enters the following opinion and orders
ACCEPTING the Report and Recommendation and AFFIRMING the judgment of the
All matters in the case were referred to the Honorable Andrew W. Austin, United States
Magistrate Judge, for report and recommendation (R&R) pursuant to 28 U.S.C.
Rule 1(h) of Appendix C of the Local Court Rules of the United States District Court for the
Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate
Judges. The Magistrate Judge issued his R&R, finding the Commissioner's decision should be
affirmed. Plaintiff is entitled to de novo review of the portions of the Magistrate Judge's report
to which she filed specific objections. 28 U.S.C.
United Servs. Auto. Ass
636(b)(1). All other review is for plain error.
79 F.3d 1415, 1428-29 (5th
cir. 1996) (en banc).
Nevertheless, this Court has reviewed the entire file de novo, and agrees with the Magistrate
This is an appeal from a denial of child's disability benefits and supplemental security
income (SSI). On May 18, 2012, Plaintiff Brittany N. Herron protectively filed applications for
child's disability benefits and SSI. Social Security Tr. (Tr.) [#9] at 289-99. In her applications,
Plaintiff alleged she has been disabled since January
seizures, inflamed lungs, and PTSD.
Id. at 346.
2003, due to endometriosis, fainting,
The Commissioner denied Plaintiff's
applications and her request for reconsideration. Id. at 159-1 83.
Plaintiff then requested a hearing on the Commissioner's denial before an Administrative
Law Judge (AU), which was held on May 30, 2014. Id. at 32-5 1. Plaintiff, medical expert
Thomas McKnight, Jr., Ph.D (ME), and vocational expert Thomas Paulson (YE) testified at the
hearing. During the hearing, Plaintiff amended her alleged disability onset date from January 1,
2003, to March 1, 2012, the date she last worked full
Id. at 43-44. At the end of the
hearing, the AU ordered that Plaintiff undergo a consultative mental examination. Id. at 76. On
June 12, 2014, Gerald Gardner, Ph.D., completed the exam. Id. at 939-5 1.
On September 24, 2014, the AU denied Plaintiff's application, id. at 9-32, and the
Appeals Council declined Plaintiff's request for review on February 1, 2016.
Id. at 1-6.
Plaintiff has exhausted her administrative remedies and now seeks judicial review of the AU' s
decision pursuant to 42 U.S.C.
for child's disability benefits, a person must be found disabled before she reaches 22 years of
age. Plaintiff was under 22 years of age on March 1, 2012. Tr. at 37. She turned 22 years old on May 25, 2012. Id.
Standard of Review
Judicial review of the
(1) whether the
Specifically, this Court reviews:
AU' s decision was supported by substantial evidence; and (2) if so, whether the
AU made any errors
of law in evaluating the evidence. Austin v. Shalala, 994 F.2d 1170, 1174
(5th Cir. 1993). Procedurally, the administrative process need not have been perfect, and this
Court "will not vacate a judgment unless the substantial rights of a party have been affected."
Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988). Procedural errors are therefore a basis for
remand only if they "would cast into doubt the existence of substantial evidence to
AU's decision." Morris
Bowen, 864 F.2d 333, 334 (5th Cir. 1988).
Substantial evidence "means more than a scintilla, but less than a preponderance,"
Bowen, 862 F.2d 471, 475 (5th Cir. 1988), and is "evidence that a reasonable mind
would accept as adequate to
substantial evidence to
the decision." Morris, 864 F.2d at 334. In making these
must "careflully scrutinize the record" to determine if there is
AU's conclusions, but the
evidence nor substitute its judgment for that of the AU. Hollis
(5th Cir. 1988). If the
finds substantial evidence to
uphold the decision. See Selders
can neither re-weigh the
Bowen, 837 F.2d 1378, 1383
the decision, the
Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). The
considers four elements of proof when determining whether there is substantial evidence of a
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. Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995).
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."
423(d)(1)(A). To determine if a claimant is able to engage in "substantial gainful
activity" (and therefore if he is disabled), the Commissioner follows a five-step process:
The hearing officer must first ascertain whether the claimant is engaged in
substantial gainful activity. A claimant who is working is not disabled
regardless of the medical findings.
The hearing officer must then determine whether the claimed impairment
is "severe." A "severe impairment" must significantly limit the claimant's
physical or mental ability to do basic work activities. This determination
must be made solely on the basis of the medical evidence.
The hearing officer must then determine if the impairment equals or
exceeds in severity certain impairments described in Appendix 1 of the
regulations. This determination is made using only medical evidence.
If the claimant has a "severe impairment" covered by the regulations, the
hearing officer must determine whether the claimant can perform his past
work despite any limitations.
If the claimant does not have the residual functional
capacity2 to perform
past work, the hearing officer must decide whether the claimant can
perform any other gainful and substantial work in the economy. This
determination is made on the basis of the claimant's age, education, work
experience, and residual functional capacity.
See Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994); 20 C.F.R.
A finding of disability or no disability at any step is conclusive and terminates the
Shalala, 38 F.3d 232, 236 (5th Cir. 1994). The claimant has the burden
of proof for the first four steps. Selders, 914 F.2d at 618. At step five, the burden initially shifts
Residual functional capacity (RFC) refers to the claimant's ability to do work despite any physical or
mental impairments. 20 C.F.R. § 404.1545(a). The AU is responsible for assessing and determining residual
functional capacity at the administrative hearing level. Id. § 404.1546. This assessment is based on reports from
treating physicians and medical consultants about the claimant's ability to sit, stand, walk, lift, carry, and perform
other work-related activities. Id. § 404.151 3(b)(6), 414.151 3(c)( 1).
to the Commissioner to identify other work the applicant is capable of performing. Id. 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 and citation omitted).
The AU's Opinion
The AU determined Plaintiff has the following impairments: thrombocytopenia; possible
endometriosis; depressive disorder, not otherwise specified; anxiety disorder, not otherwise
specified, with panic symptoms; PTSD; and borderline intellectual functioning.
Proceeding through the five-step analysis, the AU found as follows.
Tr. at 15.
First, Plaintiff is not
engaged in substantial gainful activity, although since March 1, 2012, she "has essentially
worked full-time for her sister providing daily childcare for her three-year old niece and eight-
month old nephew." Id. at 14-15.
Second, Plaintiff's impairments are "severe because the
impairments have been diagnosed by acceptable medical sources and they cause more than a
minimal effect on [Plaintiff's] ability to perform basic, work-related activities." Id. at 15-16.
Third, none of Plaintiff's impairments, either alone or in combination, meet or medically equal
any of the impairments listed in Appendix
of the regulations.
Id. at 16-18. Fourth, Plaintiff is
unable to perform her past relevant work as a telemarketer. Id. at 23.
Turning to the fifth factor, the AU determined that despite Plaintiff's inability to perform
her past job, there are jobs in the national economy which Plaintiff would presently be able to
perform, such as a laundry folder, housekeeping cleaner, or small part assembler. Id. at 23-24.
The AU found Plaintiff's "reported activities of daily living show that she is able to perform
many tasks including daily childcare which are tasks that transfer well to a work setting." Id. at
20. Consequently, the AU determined Plaintiff is not "disabled" within the meaning of the
Social Security Act. Id. at 65.
Plaintiff raises five points of error: (1) the AU erred in finding Plaintiff was not per se
disabled under Medical Listing 12.05(C); (2) the AU failed to properly weigh the medical
opinion evidence of treating physician Richard Samuel, M.D. and consulting psychologist Dr.
Gardner and to properly determine Plaintiff's RFC; (3) the AU failed to properly evaluate
Plaintiff's credibility; (4) the AU failed to pose a proper hypothetical question to the VE; and
(5) new evidence Plaintiff provided to the Appeals Council warrants remand
of Plaintiff's case.
P1.' s Br. [#12] at 17-33; P1.' s Obj s. [#16] at 1-9. The Court considers each ground for relief in
turn, and concludes the Commissioner's decision to deny Plaintiffs applications for benefits was
Intellectual Disability under Medical Listing 12.05(C)
Plaintiff first argues she is per se disabled under Medical Listing 12.05(C), which
provides a diagnostic description of an intellectual disability:
Intellectual disability: Intellectual disability refers to significantly subaverage
general intellectual functioning with deficits in adaptive functioning initially
manifested during the developmental period; i.e., the evidence demonstrates or
supports onset of the impairment before age 22. The required level of severity for
this disorder is met when the requirements in A, B, C, or D are satisfied.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05(C). In addition to this description, Listing 12.05
provides four sets of criteria under paragraphs A, B, C, and D.
Of particular relevance to
Plaintiffs claim is paragraph C, which is satisfied with evidence of:
A valid verbal, performance, or full scale I.Q. of 60 through 70 and a physical or
other mental impairment imposing an additional and significant work-related
limitation of function[.]
Plaintiff must separately satisfy both the diagnostic description, requiring evidence of
"significantly subaverage general intellectual functioning with deficits in adaptive functioning
initially manifested during the developmental period," and the criteria set forth in paragraph A,
B, C, or D to be deemed disabled under Listing 12.05. See Randall
Astrue, 5570 F.3d 651,
659-60 (5th Cir. 2009). Adaptive functioning is generally described as a person's "effectiveness
in areas such as social skills, communication, and daily living skills, and how well the person
meets the standards of personal independence and social responsibility expected of his or her age
by his or her cultural group." Heller
Doe, 509 U.S. 312, 329 (1993). For instance, adaptive
functioning activities include "cleaning, shopping, cooking, taking public transportation, paying
bills, maintaining a residence, caring appropriately for grooming and hygiene, using telephones
and directories, and using a post office." Campos
Astrue, No. 5:08-CV-155-C, 2009 WL
1586194, at *2 (N.D. Tex. June 8, 2009).
Here, the record contains sufficient evidence supporting the
AU's finding that Plaintiff
did not have adaptive functioning deficits. In her opinion, the AU states, "there is no evidence
that [Plaintiff] has  adaptive functioning deficits in personal care[,] communicating, socializing
as she sees fit, working, observing safety issues, using community resources, homeliving, self-
direction, following direction, or being aware of her health." Tr. at 17. Specifically, the AU
points to evidence that Plaintiff worked as a telemarketer and as a childcare provider for her
three-year-old niece and eight-month-old nephew.
Plaintiff also had no problems with
personal care, "could prepare simple meals, do household choirs, shop, and interact[
Plaintiff argues she does have deficits in adaptive functioning because "she has never had
a consistent job with earnings equivalent with substantial gainful activity." P1.' s Br. [#12] at 18;
P1.' s Obj s. [#16] at 2. However, Plaintiff' s argument is unpersuasive, because a person's failure
to engage in substantial gainful activity as defined by the Commissioner does not automatically
mean the person has deficits in adaptive functioningin other words, substantial gainful activity
and adaptive functioning are not equivalent.
See 20 C.F.R. § 404.1572.
determination relied on Plaintiff's ability to perform adaptive functioning activities, not whether
she had a job that constituted a substantial gainful
Plaintiff further argues she meets the requirements of paragraph C of the Listing because
she "consistently has IQ testing in the required range." P1.'s Br. [#12] at 18; P1.'s Objs. [#16] at
2-3. In her decision, the AU found Plaintiff's current IQ score of 65 was invalid because the
score was inconsistent with Plaintiff's actual functional abilities and her prior IQ scores of 70,
74, and 84. Tr. at 17. It is well-known that an AU may make factual determinations on the
validity of IQ tests. See Pierre
Sullivan, 884 F.2d 799, 803 (5th Cir. 1989). For example, the
AU may decide not to fully credit the score
if there is evidence to show that is unreliable,
invalid, or inconsistent with other evidence in the record. See, e.g., Cole
Barnhart, 69 F.
App'x 658, 658 (5th Cir. 2003) (rejecting IQ score as indicative of intellectual disability in light
of Plaintiffs work history).
Here, there is substantial evidence supporting the
Plaintiff also contends "it is unclear if the AU applied the correct legal standard," because the AU
concluded Plaintiff did not have "significant deficits in adaptive functioning" as opposed to "deficits in adaptive
functioning." Pl.'s Br. [#12] at 19. Because the Court finds there is substantial evidence in the record that the
Plaintiff had deficits in adaptive functioning, at the very least, the Court need not analyze the standard under Listing
12.05 in depth, though at least some courts have stated the standard does require "significant deficits." See, e.g.
Falgoust v. Massanari, No. CIV.A. 01-1948, 2002 WL 465174, at *3 (E.D. La. Mar. 26, 2002) ("Listing 12.05(C)
requires evidence of signflcant deficits of adaptive functioning before age 22, a valid IQ score of 60-70, and at least
one additional and significant physical or other mental impairment.") (emphasis added).
determination that Plaintiff's current IQ score was inconsistent with other evidence in the record,
such as her functioning abilities and previous IQ
In sum, substantial evidence exists to support the
AU's decision that Plaintiff was not
intellectual disabled as described by Listing 12.05(C).
The Medical Opinion Evidence
Plaintiff argues the AU
erred by failing to properly weigh the opinion of treating
physician Dr. Samuel. In particular, Plaintiff asserts the AU should have given Dr. Samuel's
opinion controlling weight because it was based on appropriate clinical and diagnostic evidence.
Pl.'s Br. [#121 at 20. Even if Dr. Samuel's opinion was not entitled to controlling weight,
Plaintiff argues the AU failed to use the factors provided in 20 C.F.R.
to determine how much weight to give his opinion. Id. at 20-21. Plaintiff also alleges the AU
failed to properly weigh the opinion of consultative psychologist Dr. Gardner. Id. at 23-24.
Finally, Plaintiff alleges the AU erred in determining Plaintiff's physical and mental RFC.
Pl.'s Objs. [#16] at 6.
Under 20 C.F.R.
404.1 527(c)(2), the opinion of a "treating source" on the nature and
severity of a claimant's impairments is given controlling weight if the Commissioner finds the
opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques,
and is not inconsistent with the other substantial evidence in [the] case record." Id.
The treating physician's opinions are not conclusive, however, and the AU is "free to reject the
Because substantial evidence exists that Plaintiff did not show deficits in adaptive functioning and did not
have a valid IQ score of 60-70, the Court need not address the second aspect of paragraph C of the Listing: whether
Plaintiff has "a physical or other mental impairment imposing an additional and significant work-related limitation
offunction." See Pl.'s Br. [#12] at 18; Pl.'s Objs. [#16] at 3.
opinion of any physician when the evidence supports a contrary conclusion." Newton
209 F.3d 448, 455 (5th Cir. 2000).
When the AU
rejects a treating physician's opinion, she is generally required to
reference the factors listed in 20 C.F.R.
404.1527(c)(l)(6) in so doing. Id. at 456. Those
factors include: (1) the physician's length of treatment of the claimant; (2) the physician's
frequency of examination of the claimant; (3) the nature and extent of the treatment relationship;
(4) the support in the record for the physician's opinion; (5) the consistency of the physician's
opinion with the record as a whole; and (6) the physician's specialization. Id.; see 20 C.F.R.
404.1527(c). However, "[n]either the regulation nor interpretive case law requires that an AU
specifically name, enumerate, and discuss each factor in outline or other rigid, mechanical form."
Wiltz v. Comm 'r ofSoc. Sec. Admin., 412 F. Supp. 2d 601, 608 (E.D. Tex. 2005).
The AU determined Dr. Samuel's opinion was not supported by the record and contained
internal inconsistences. Tr. at 26. For instance, the AU found nothing in the record supporting
Dr. Samuel's opinion that Plaintiff could only sit for 4 hours during an 8-hour period and
stand/walk for 4 hours during an 8-hour period.
also pointed to certain
inconsistencies within Dr. Samuel's "scant treatment notes." Id. at 26. For example, in his
questionnaire, Dr. Samuel noted he did not find it necessary to recommend Plaintiff not sit
continuously in a work setting, yet at the same time wrote Plaintiff must get up and move around
Id. at 926. The AU found this constituted "an extreme variance in the degree
limitation," which was not supported by the record. Id. at 21; see also Foster
Astrue, 410 F.
App'x 831, 833 (5th Cir. 2011) (assigning little weigh to treating physician's questionnaire "due
to its brevity, conclusory nature, lack of explanatory notes, or supporting objective tests and
Plaintiff argues "[i]t is clear that [this] inconsistency was based on a misunderstanding by the doctor."
Pl.'s Objs. [#16] at 4. The Court sees no reason to assume Dr. Samuel misunderstood his questionnaire, and the
record does not support such a misunderstanding.
."). Further, Dr. Samuel opined Plaintiff could never lift or carry more than 10
pounds, which the AU found conflicted with Plaintiff's testimony that she worked fulltime
taking care of her niece and nephew. Id. at 21, 64-66 (finding Plaintiff likely lift/carries 20
pounds on a frequent basis while providing childcare). For these reasons, the
give Dr. Samuel's evaluation controlling weight was not in error.
In addition, the AU considered multiple factors from
404.1529(c) in determining how
much weight to afford Dr. Samuel's testimony. As described above, the AU discussed whether
there was "support in the record for [Dr. Samuel's] opinion," see 20 C.F.R.
and analyzed "the consistency of [Dr. Samuel's] opinion with the record as a whole," see 20
See also Newton, 209 F.3d at 456.
Though the AU
specifically list the factors, her analysis incorporated at least some of the factors. See Wiltz, 412
F. Supp. 2d at 608.
Even if the
AU's analysis of the § 404.1527(c) factors was insufficient, Plaintiff did not
suffer prejudicial harm. See Mays
Bowen, 837 F.3d 1362, 1364 (5th Cir. 1988) ("Procedural
perfection in administrative proceedings is not required" as long as "the substantial rights of the
parties have not been affected.").
After reviewing the record, this Court finds substantial
evidence supports the AU's decision to afford Dr. Samuel's opinion little weight. In addition to
the inconsistencies and lack of support from the record discussed by the
AU, Dr. Samuel's
questionnaire, signed April 22, 2014, shows he had been treating Plaintiff for less than two
Tr. at 930 ("I started regularly evaluating [Plaintiff] on 3/6/14
."); 20 C.F.R.
404.1527(c)(1)(2). What's more, the record includes evidence that Dr. Samuel is a family
practitioner who does not specialize in gynecological or mental health issues and who does not
regularly perform mental health examinations. Tr. at 46; 20 C.F.R.
Plaintiff also argues the AU erred in giving little weight to Dr. Gardner's report that
Plaintiff suffered from adaptive deficits and mental limitations.
Pl.'s Br. [#12] at 24.
Specifically, Plaintiff claims "[t]he AU failed to offer any good reasons for not giving any
weight to Dr. Gardner's opinions on Ms. Herron's mental impairments." Id.
Because Dr. Gardner is a nontreating physician, "[he] is not accorded the controlling
weight given to treating physicians." Hernandez
2008); see also Rodriguez
Astrue, 278 F. App'x 333, 338 (5th Cir,
Shalala, No. 93-8712, 1994 WL 499764, at *2 (5th Cir. 1994)
("[Wjhere the examining physician is not the claimant's treating physician and where the
physician examined the claimant only once, the level of deference afforded his opinion may fall
correspondingly."). Further, "it is well-established that an AU can consider all the evidence in
the record without directly addressing each piece of evidence in his opinion." Vandestreek v.
Colvin, No. 7:14-CV-00001-O, 2015 WL 1239739, at *6_7 (ND. Tex. Mar. 17, 2015); see also
Barnhart, No. SA-04CA1 l07RF, 2005 WL 2137900, at *6 (W.D. Tex. Jul. 13,
2005) ("The AU may not have discussed all of the evidence in the record to the extent desired
by Plaintiff, but the AU is only required to make clear the basis of his
assessmenthe need not
discuss all supporting evidence or evidence rejected.").
Contrary to Plaintiff's argument, the AU did provide reasons for finding Dr. Gardner's
opinions were not entitled to significant weight. The AU discounted Dr. Gardner's opinion
regarding Plaintiff's adaptive deficits because it was inconsistent with the record, which included
evidence of Plaintiff's full-time position as a child-care provider.
Tr. at 21.
Gardner's opinion regarding Plaintiff's mental limitations was internally inconsistent (i.e. his
check-marked conclusions did not match his narrative conclusions); he did not review the entire
record in the case; and his findings strongly suggest he placed undue reliance on Plaintiff's
subjective allegations. Id. at 22. Finally, four non-treating state agency medical consultants
evaluated Plaintiff and concluded she did not suffer from a severe physical or mental
impairment. Id. Because the AU clearly considered and weighed Dr. Gardner's opinions, the
Court finds she did not err in assigning Dr. Gardner's opinions little weight.
Plaintiff argues because the AU disregarded Dr. Samuel and Dr. Gardner's opinions,
there was no evidence to support the
AU' s determination that Plaintiff retained the RFC to
perform light work, lift/carry 20 pounds occasionally and 10 pounds frequently, stand/walk for 6
hours in an 8-hour workday and sit for 6 hours in an 8-hour work day, and to occasionally stoop,
squat, crouch, crawl, and kneel. Tr. at 18-19.
An individual's RFC represents "the most [a claimant] can still do despite his
limitations." 20 C.F.R.
404.1545, 416.945. To determine a claimant's RFC, the AU may
consider statements made by the claimant as well as observations of the limitations by the
claimant's treating or examining physicians, psychologists, family, friends, or other persons.
F.3d 1378, 1386-87 (5th Cir. 1988); 20 C.F.R.
discussed above, "an AU has considerable discretion in assigning weight to medical opinions
and may reject the opinion of any physician when the evidence supports a contrary conclusion."
2015 WL 1239739, at *8.
Here, the AU considered Plaintiff's own testimony that she worked in the past as a
telemarketer and at various cashier positions and currently provides daily childcare for her niece
Tr. at 19.
The AU also relied on Plaintiff's statements that she was only
prescribed six pain pills a month by her physician, signaling the infrequent nature of her pain.
Id. Further, the AU noted the state agency medical consultants indicated Plaintiff "did not have
any 'severe' physical or mental impairment that imposed even minimal limitation upon her
capacity for work-related activity." Id. at 22. Thus, contrary to Plaintiff's allegations, the AU's
decision was not based on "her own unsupported opinion as to the limitations presented by
[Plaintiffs] medical conditions."
Pl.'s Br. [#12] at 25.
The Court finds the
determination was based on substantial evidence.
Next, Plaintiff asserts the AU erred in concluding Plaintiff's testimony "concerning the
intensity, persistence and limiting effects of [her] symptoms are not fully credible." Tr. at 20.
Social Security Ruling SSR 96-79 prescribes a two-step process for an AU evaluating a
claimant's subjective complaints. SSR 96-7p, 1996 WL 374186, at *2 (July 2, 1996). An AU
must first consider whether the claimant had a medically determinable impairment that could
reasonably be expected to produce the alleged symptoms. id. Once an impairment is shown, the
AU must evaluate the intensity, persistence, and limiting effects
of the alleged symptoms to
determine the extent to which they limited the claimant's ability to do basic work activities. Id.
Whenever the claimant's statements concerning the intensity, persistence, or limiting effects of
pain or other symptoms are not substantiated by objective medical evidence, the AU makes a
credibility finding regarding the claimant's statements. Id.
AU's credibility determination must be based on consideration of the entire record,
including medical signs and laboratory findings, and statements by the claimant and her treating
or examining sources concerning the alleged symptoms and their effect. Id. The AU must also
consider a non-exclusive list of seven relevant factors in assessing the credibility of a claimant's
statements: (1) the individual's daily activities; (2) the location, duration, frequency, and
intensity of the individual's pain or other symptoms; (3) factors that precipitate and aggravate the
symptoms; (4) the type, dosage, effectiveness, and side effects of any medication the individual
takes or has taken to alleviate pain or other symptoms; (5) treatment, other than medication, the
individual receives or has received for relief of pain or other symptoms; (6) any measures other
than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat
on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and (7) any
other factors concerning the individual's functional limitations and restrictions due to pain or
other symptoms. Id. at *3 Although the AU must give specific reasons for her credibility
determination, "neither the regulation nor interpretive case law requires that an AU name,
enumerate, and discuss each factor in outline or other rigid, mechanical form." See Giles
Astrue, 433 F. App'x 241, 249 n.30 (5th Cir. 2011); Prince
Barnhart, 418 F. Supp. 2d 863,
871 (E.D. Tex. 2005). Along these lines, the Fifth Circuit has explicitly rejected the requirement
that an AU "follow formalistic rules" when assessing a claimant's subjective complaints. Falco
Shalala, 27 F.3d 160, 164 (5th Cir. 1994). Finally, the AU's evaluation of the credibility of
subjective complaints is entitled to judicial deference. See Carrier
Sullivan, 944 F.2d 243, 247
(5th Cir. 1991) (per curiam). The AU is in the best position to assess a claimant's credibility,
because she "enjoys the benefit of perceiving first-hand the claimant at the hearing." Falco, 27
F.3dat 164 n.18.
Here, the AU stated Plaintiff's "medically determinable impairments could reasonably
be expected to cause the alleged symptoms," but concluded Plaintiff's "statements concerning
the intensity, persistence, and limiting effects of these symptoms are not fully credible." Tr. at
20. The AU points to the fact that Plaintiff testified she can currently perform many activities,
including fulltime childcare, which conflicts with the alleged severity of her symptoms; that she
was prescribed six pain pills a month, which "undermines the nature, frequency and intensity of
the pain she contends"; that despite allegations of PTSD, the record shows Plaintiff "has not been
involved in prior documented mental health therapy or counseling, which further discredits her
allegations of depression and anxiety"; and that she performed jobs as telemarketer and cashier
in the past despite similar complaints of pain. Tr. at 20-21. Although not in a formalistic
fashion, the AU
considered the entire record and the factors for determining credibility,
including Plaintiff's daily activities, the location, duration, frequency, and intensity of Plaintiff's
pain, medication Plaintiff took to alleviate the pain, and other treatment Plaintiff received.
SSR 96-7p, 1996 WL 374186, at *3
Plaintiff argues the AU
erred because she rejected Plaintiff's allegations "simply
'because the available objective medical evidence does not substantiate [the claimant's]
statements." Pl.'s Br. [#12] at 27-28 (citing 20 C.F.R.
AU's reasoning was not based solely on objective medical evidence. Rather, the
AU's credibility determination highlights the conflict between Plaintiff's testimony that she was
able to perform many daily activities, including childcare, and Plaintiff's alleged symptoms and
Tr. at 20-2 1.
Plaintiff also complains that the AU did not cite to medical evidence to support her
conclusion that Plaintiff's medication dosage of six pills a month was inconsistent with her
alleged pain, and that the AU did not consider that Plaintiff's failure to seek treatment for her
PTSD could have been due to her lack of insurance. Pl.'s Br. [#12] at 28; Pl.'s Objs. [#16] at 8.
These arguments are unconvincing.
The AU was not required to cite objective medical
evidence in her analysis of the factors, and even if she were required, Plaintiff's medication
dosage was only one of many factors that supported the
AU's credibility determination.
Further, the record contains no evidence that Plaintiff failed to seek treatment for her PTSD due
to lack of insurance. In sum, Plaintiff does not show the AU erred in making her credibility
determination, and the determination is supported by substantial evidence in the record.
Hypothetical Posed to VE
Plaintiff also argues the AU's finding is not supported by substantial evidence because
the hypothetical she posed to the VE and relied on in making her decision did not reasonably
incorporate all of Plaintiff's limitations. Pl.'s Br. [#12] at 29.
At step five of the disability determination process, the AU considers whether the
claimant can perform alternative work, given her RFC. If the AU has found the claimant does
not have the RFC to perform past work, the AU must decide whether the claimant can perform
any other gainful and substantial work in the economy. In making this determination, the AU
relies on the medical-vocational guidelines or the testimony of a yE. A hypothetical posed to a
YE must incorporate reasonably all of the disabilities recognized by the AU in order for the
YE's opinion to constitute substantial evidence supporting the AU's decision.
Shalala, 36 F.3d 431, 436 (5th Cir. 1994).
Here, the AU directed the YE to consider an individual mentally limited to simple,
routine tasks, SYP
level tasks, or lower semi-skilled jobs, provided there is no need for
changes in the routine work setting and no more than superficial contact with coworkers or the
Tr. at 72. Plaintiff asserts this hypothetical fails to account for the
finding that Plaintiff has moderate restrictions in concentration, persistence, or pace. Pl.'s Br.
[#12] at 29. The Court, however, finds the
AU's question adequately reflects these limitations.
The AU asked the YE to assume an individual was limited to "simple, routine tasks, SYP
tasks, or lower semi-skilled jobs," which reflects that the AU reasonably incorporated Plaintiff's
moderate concentration, persistence, and pace limitations. See Bordelon v. Astrue, 281 F. App'x
418, 423 (5th Cir. 2008) (finding hypothetical question stating claimant needed a job with "only
rare public interaction, low stress, and simple one- to two-step instructions" adequately reflected
claimants moderate concentratiOn, persistence, and pace limitations); see also Adams
No. CIV. A. CVO7-1248, 2008 WL 2812835, at *4 (W.D. La. June 30, 2008) ("A limitation to
simple, repetitive, routine tasks adequately captures deficiencies in concentration, persistence or
pace."). Plaintiff's authority from this circuit does not convince the Court otherwise. See, e.g,
Ellis v. Astrue, No. 7:09-CV-70-O-BF, 2010 WL 3422872, at
Ellis, the court found the
(N.D. Tex. Jul. 27, 2010). In
AU's hypothetical question was improper because
it described a
person with "mild deficiencies in concentration, persistence, or pace" when the AU found the
claimant had "moderate difficulties with concentration, persistence, or pace." Id. (emphasis
added). That discrepancy does not exist here. Therefore, the AU did not err in relying on
evidence from the yE.
Finally, Plaintiff argues the Appeals Council did not properly consider the new evidence
Plaintiff submitted on appeal. P1.'s Br. [#12] at 32. The new evidence consists of a report from
examining psychologist Dr. Jack M. Litman, dated May 14, 2015. According to Plaintiff, Dr.
Litman's report shows the AU's decision was not based on substantial evidence. Id. at 32-33.
The Commissioner argues the Court may not review the Appeals Council's decision to deny
review of the AU decision and, if review is allowed, Dr. Litman's report does not alter the
AU's decision because it "at best, merely documents subsequent deterioration of a previously
non-disabling condition, or an additional impairment not yet in existence during the relevant time
period." Commissioner's Br. [#14] at 18.
When a claimant submits new and material evidence that relates to the period before the
date of the
AU's decision, the Appeals Council must consider the evidence in deciding whether
to grant a request for review.
404.970(b). The regulations do not require the
Appeals Council to discuss the newly submitted evidence, or to give reasons for denying review.
Colvin, 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. See
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
AU's decision becomes unsupported.
Barnhart, 163 F. App'x 279, 281-82 (5th Cir. 2006); Morton
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.")
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
(5th Cir. 2003) (per curiam).
Barnhart, 325 F.3d 550, 551-52
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
they fail to meet the materiality requirement. Powell
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).
Here, Dr. Litman' s report is not material because there is no reasonable probability it
would have changed the outcome of the
AU's disability determination.
Dr. Litman's report
largely repeats Plaintiff's diagnosis and symptoms from the original record and does not
undercut any of the
AU's findings or conclusions. Further, the report concerns evidence of
subsequent deterioration of Plaintiff's previously nondisabling condition. See Colvin, 2013 WL
5433496, at * 11. Plaintiff argues Dr. Litman's opinions are material because they are consistent
with Dr. Gardner's opinions, but, as explained above, the AU discounted Dr. Gardner's opinions
based on evidence in the record.
In sum, the
is supported by substantial
evidence, and Dr. Litman's report does not dilute the record to such an extent that the
decision is unsupported.
AU's decision was supported by substantial evidence, and the AU did not make any
errors of law. Therefore, the decision of the Commissioner in this case is AFFIRMED.
IT IS ORDERED that the Report and Recommendation of the United States
Magistrate Judge [#15] is ACCEPTED; and
IT IS FINALLY ORDERED that the decision of the Commissioner of the Social
Security Administration to deny benefits to Brittany N. Herron is AFFIRMED.
SIGNED this the
day of June 2017.
UNITED STATES DISTRICT JUDGE
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