Herron v. Colvin

Filing 17

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
AUSTIN DIVISION

r

BRITTANY N HERRON,
Plaintiff,
CAUSE NO.: A-16-CA-00425-SS
-vs-

CAROLYN W.
COLVIN,
Acting
Commissioner of the Social Security
Administration,
Defendant.

ORDER
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
Commissioner.
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.

§

636(b) and

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

1

I

to which she filed specific objections. 28 U.S.C.
Douglass

v.

United Servs. Auto. Ass

'n,

§

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

Judge's recommendation.

Background
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.

1,

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

time.1

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.

§

405(g).

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.

'To qualify

Analysis
I.

Standard of Review
Judicial review of the

(1) whether the

AU's decision

is limited.

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

v.

support

the

Bowen, 864 F.2d 333, 334 (5th Cir. 1988).

Substantial evidence "means more than a scintilla, but less than a preponderance,"

Harrell

v.

Bowen, 862 F.2d 471, 475 (5th Cir. 1988), and is "evidence that a reasonable mind

would accept as adequate to
determinations, the

Court

substantial evidence to

support

the decision." Morris, 864 F.2d at 334. In making these

must "careflully scrutinize the record" to determine if there is

support

the

AU's conclusions, but the

evidence nor substitute its judgment for that of the AU. Hollis
(5th Cir. 1988). If the

Court

finds substantial evidence to

uphold the decision. See Selders

v.

Court
v.

support

can neither re-weigh the

Bowen, 837 F.2d 1378, 1383

the decision, the

Court

Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). The

must
Court

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."
42 U.S.C.

§

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:
1.

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.

2.

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.

3.

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.

4.

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.

5.

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.

§

404.1520.

A finding of disability or no disability at any step is conclusive and terminates the
analysis. Greenspan

v.

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).
2

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).

II.

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

1

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.

III.

Application
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

warranted.
A.

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[.]

Id.

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

v.

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

v.

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

v.

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.

Id.

Plaintiff also had no problems with

personal care, "could prepare simple meals, do household choirs, shop, and interact[

]

with her

friends." Id.

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;

7

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.

The

AU's

determination relied on Plaintiff's ability to perform adaptive functioning activities, not whether
she had a job that constituted a substantial gainful

activity.3

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

v.

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

v.

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

AU's

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).

8

determination that Plaintiff's current IQ score was inconsistent with other evidence in the record,
such as her functioning abilities and previous IQ

scores.4

In sum, substantial evidence exists to support the

AU's decision that Plaintiff was not

intellectual disabled as described by Listing 12.05(C).
B.

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.

§

404.1527 and

§

416.927

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.

See

Pl.'s Objs. [#16] at 6.
i.

Dr. Samuel

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.

§

1

527(c)(2).

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

v.

Apfel,

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.

Id.

The AU

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
constantly.5

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

v.

of

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.

10

examinations.

. .

."). 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

AU's refusal

to

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.

§

404.1527(c)(4),

and analyzed "the consistency of [Dr. Samuel's] opinion with the record as a whole," see 20
C.F.R.

§

404.1527(c)(5).

See also Newton, 209 F.3d at 456.

Though the AU

did not

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

v.

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
months.
§

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.

11

§

404.1 527(c)(6).

Dr. Gardner

ii.

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

v.

v.

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

Penalver

v.

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.

Further, Dr.

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

12

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.

RFC Determination

iii.

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.
Hollis

v.

Bowen, 837

F.3d 1378, 1386-87 (5th Cir. 1988); 20 C.F.R.

§

404.1545(a).

See

As

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."
Vandestreek,

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
and nephew.

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.

13

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

AU's RFC

determination was based on substantial evidence.
C.

Plaintiff's Credibility
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.
The

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

14

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

v.

v.

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
v.

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

v.

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

15

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.

See

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.
However, the

§

404.15929(c)(2) and

§

416.929(c)(2)).

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
pain severity.

See

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.
D.

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.

See Bowling

v.

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

3

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

general public.

See

Tr. at 72. Plaintiff asserts this hypothetical fails to account for the

AU's

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

3

level

tasks, or lower semi-skilled jobs," which reflects that the AU reasonably incorporated Plaintiff's

17

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

v.

Astrue,

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.
E.

New Evidence
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.

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.

20 C.F.R.

§

404.970(b). The regulations do not require the

Appeals Council to discuss the newly submitted evidence, or to give reasons for denying review.
See Sun

v.

Colvin, 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

Higginbotham

v.

Barnhart, 405 F.3d 332, 337 (5th Cir. 2005). A court considering the Appeals

Council's decision must review the record as a whole to determine whether the Commissioner's
decision is supported by substantial evidence, and should remand only if the new evidence
dilutes the record to such an extent that the

Higginbotham

v.

AU's decision becomes unsupported.

Barnhart, 163 F. App'x 279, 281-82 (5th Cir. 2006); Morton

3:l0CV-1076D,

v.

See

Astrue, No.

2011 WL 2455566 at *7 (N.D. Tex. June 20, 2011) ("The proper inquiry

concerning new evidence takes place in the district court, which considers whether, in light of
the new evidence, the Commissioner's findings are still supported by substantial evidence.")

(citations omitted).
Newly submitted evidence is material if: (1) it relates to the time period for which the
disability benefits were denied; and (2) there is a reasonable probability that it would have

changed the outcome of the disability determination. Castillo
(5th Cir. 2003) (per curiam).

v.

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

19

they fail to meet the materiality requirement. Powell

v.

Colvin, No. 3:12-CV-1489-BH, 2013

WL 5433496, at *11 n.9 (N.D. Tex. 2013) (quoting Johnson, 767 F.2d at 183).

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

AU's decision

is supported by substantial

evidence, and Dr. Litman's report does not dilute the record to such an extent that the

AU's

decision is unsupported.

Conclusion
The

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.

Accordingly:
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.

SAM SPARKS
UNITED STATES DISTRICT JUDGE
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