“[P]rocedural perfection is not required unless if affects the substantial rights of a party.”
How later courts described this case
- “[P]rocedural perfection is not required unless if affects the substantial rights of a party.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT September 30, 2019
FOR THE SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk
HOUSTON DIVISION
DILLINA HULL, §
§
Plaintiff, §
§
v. § CIVIL ACTION NO. H-18-1553
§
ANDREW SAUL,1 COMMISSIONER §
OF THE SOCIAL SECURITY §
ADMINISTRATION, §
§
Defendant. §
MEMORANDUM OPINION
Pending before the court2 are Plaintiff’s Motion for Summary
Judgment (Doc. 14) and Defendant’s Cross-Motion for Summary
Judgment (Doc. 13). The court has considered the motions, the
responses, the administrative record, and the applicable law. For
the reasons set forth below, the court DENIES Plaintiff’s motion
and GRANTS Defendant’s motion.
I. Case Background
Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) for
judicial review of an unfavorable decision by the Social Security
Administration (“SSA”) Commissioner (“Commissioner” or “Defendant”)
regarding Plaintiff’s claim for disability insurance benefits under
1 Nancy Berryhill was the Acting Commissioner of the Social Security
Administration (“SSA”) at the time that Plaintiff filed this case but no longer
holds that position. Andrew Saul is now Commissioner of the SSA and, as such,
is automatically substituted as the defendant in this case. See 42 U.S.C. §
405(g); Fed. R. Civ. P. 25(d).
2 The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. Doc. 10, Ord. Dated July
20, 2018.
Title II of the Social Security Act (“the Act”).
A. Medical History
Plaintiff was born on June 3, 1974, and was forty years old on
the alleged disability onset date of November 27, 2014.3 Plaintiff
received special education services in school but graduated from
high school and, after several attempts, passed the cosmetology
examination after which she worked as a hairstylist.4 Plaintiff
also worked as a janitor at a school for ten months and student bus
driver for more than five years.5
When Plaintiff was twenty years old, she was in a vehicle
accident and suffered a head injury as a result of being thrown
through the windshield.6 During the ten years prior to Plaintiff’s
alleged onset date, she received treatment for dyslexia,
depression, anxiety and vocational rehabilitation.7 In 2007,
Plaintiff admitted herself to psychiatric hospital “after losing
her job and her home” and received outpatient therapy thereafter.8
On April 15, 2015, Audrey Muehe, Ph.D., (“Dr. Muehe”), a
3 See Tr. of the Admin. Proceedings (“Tr.”) 94, 104, 184, 217.
4 See Tr. 78, 83, 222-23, 282-92.
5 See Tr. 78, 83, 218, 223, 239-44.
6 See Tr. 301.
7 See Tr. 225-27.
8 Tr. 301; see also Tr. 332.
2
clinical psychologist and neuropsychologist, interviewed Plaintiff
and administered a battery of tests with the purpose of determining
Plaintiff’s then-current levels of academic achievement as part of
an assessment for vocational rehabilitative services.9 Plaintiff
identified her disability as illiteracy.10 Plaintiff reported a
history of alcohol abuse but represented that she had been sober
for six months at the time of the interview.11 Her only reported
medications were BC Powder and vitamins.12
According to Dr. Muehe, Plaintiff appeared on time; “her
general appearance reflected adequate hygiene and grooming
skills[;]” her “[a]ffect and mood were irritable and angry[;]” and
she cried at times during the testing.13 Dr. Muehe described
Plaintiff’s spontaneous speech as complaining in nature,
particularly in relation to the testing, which was “almost
discontinued” thrice due to Plaintiff’s becoming so upset when
asked to perform reading, writing, and math.14 A mental status
examination was largely normal except that she had difficulty
comprehending instructions and directives, she spoke with limited
grammatical structure, and her attention and concentration were low
9 See Tr. 300-09.
10 See Tr. 301.
11 See id.
12 See id.
13 Id.
14 Id.
3
average.15
The test results revealed limitations in intellectual
functioning; early elementary level reading, spelling, and
mathematics; deficient graphesthesia on the right hand; low-average
immediate auditory attention; and deficient rote learning, recall,
ability to copy a complex geometric design, tracking, and ability
to generate multiple hypotheses.16 From the interview and test
results, Dr. Muehe drew the following functional limitations: (1)
illiterate reading, writing, and spelling skills; (2) poor
mathematical skills; (3) some problems with memory; (4) depression,
anxiety, and irritable mood; (5) high number of detail errors; (6)
limited comprehension of abstractions and directions and limited
insight; (7) limited coping skills; (8) sporadic work history; and
(9) difficulty understanding, remembering, and carrying out
detailed instructions.17
Dr. Muehe diagnosed Plaintiff with major depression and opined
that Plaintiff would “experience difficulty with learning and
retention when information is presented orally and involves
disparate parts and chronological events” but that she possibly
could compensate for her memory deficits with the use of sticky
15 See Tr. 302.
16 See Tr. 302-04.
17 See Tr. 304-05.
4
notes, calendars, and lists.18 Dr. Muehe found Plaintiff’s
attention to simple tasks to be good but her illiteracy to be a
“significant vocational handicap especially if she want[ed] to work
in an office at a desk position.”19
Dr. Muehe diagnosed Plaintiff with amnestic disorder and major
depression and assessed Plaintiff’s Global Assessment of
Functioning (“GAF”)20 to be 50, a score at the higher-functioning
end of the serious-symptoms category.21 Even so, Dr. Muehe found
Plaintiff able to work:
Her job potential is on where she would likely be able to
operate simple equipment. If given ample time and
instruction, she would likely be able to learn a limited
number of steps for routinized jobs. If deviations or
snags emerge, [Plaintiff] will likely need access to a
supervisor for guidance and assistance in problem-
solving. She will likely require hands-on, experiential
training, such as an apprentice training program. She is
unlikely to benefit from textbook or written manual
learning at this time.22
Plaintiff received basic counseling and medication management
at the Mental Health and Mental Retardation Authority (“MHMRA”)23
18 See Tr. 305, 306.
19 Tr. 305.
20 The GAF score is a way for a mental health provider to subjectively
estimate an individual’s social, occupational, and psychological functioning.
See Diagnostic & Statistical Manual of Mental Disorders 34 (Am. Psychiatric Ass’n
4th ed. 2000)(replaced in 2013 by the fifth edition, which dropped GAF in favor
of the World Health Organization Disability Assessment Schedule 2.0).
21 See Tr. 308-09.
22 Tr. 307.
23 MHMRA is now known as The Harris Center.
5
from August 17, 2016 through February 20, 2017.24 On August 17,
2016, Plaintiff reported a history of major depression and alcohol
abuse but admitted that she had not received treatment for these
issues in the prior eight years.25 She stated that she had lost
about twenty-five pounds in the prior six weeks and described her
energy level as “up and down, I[’]m cleaning, I[’]m dancing, I[’]m
talking to my friends[;] [b]ut once I get home by myself it goes
down.”26
Plaintiff failed to attend an appointment on September 9,
2016.27 Plaintiff called the MHMRA helpline in late October because
she was out of medications and explained that she had missed the
intake appointment because she did not have a ride.28 Plaintiff
expressed concern that she would not be able to arrange
transportation to the next scheduled appointment, and MHMRA
scheduled a home visit.29 When MHMRA contacted Plaintiff by
telephone on November 1, 2016, Plaintiff reported that she had been
out of medication since September and did not know about the missed
appointment.30
24 See Tr. 323-61.
25 See Tr. 332.
26 Id.
27 See Tr. 358.
28 See Tr. 359.
29 See id.
30 See Tr. 358.
6
On November 3, 2016, Vasanthi Janarthanan, M.D., (“Dr.
Janarthanan”) saw Plaintiff for a psychiatric assessment.31
Plaintiff reported a history of “depressed mood, crying spells,
[h]elpless, hopeless and worthless feelings, . . . headaches,
[d]eclining self care, increased anxiety and worrying, erratic
sleep, poor appetite, isolating self, [l]ack of concentration,
[l]ack of motivation, lack of energy and stay[ing] in bed mostly.”32
Plaintiff denied experiencing hallucinations, delusions, and
suicidal/homicidal ideation.33 Plaintiff also reported that she had
been abusing alcohol for the prior three months with her most
recent use “a couple days” earlier when she consumed four bottles
of wine.34
Dr. Janarthanan recorded that Plaintiff was casually dressed,
cooperative and that she exhibited normal motor activity, soft
spoken speech, spontaneous language, depressed and anxious mood,
constricted affect, logical thought processes, goal direct
associations, alert sensorium, and grossly intact cognition.35
Plaintiff denied hallucinations, delusions, suicidal ideation, and
homicidal ideation.36 Plaintiff was oriented to person, place,
31 See Tr. 332-39.
32 Tr. 332.
33 See id.
34 Id.
35 See Tr. 334.
36 See id.
7
time, and situation, according to the doctor, but exhibited
deficits in immediate, recent, and remote memory with selective
attention.*’ Dr. Jaranthanan found Plaintiff’s fund of knowledge
to be appropriate for her age and educational level but found her
insight and judgment to be limited.*® He diagnosed Plaintiff with
major depressive disorder and alcohol abuse and assessed a fair
prognosis.» Dr. Janarthanan prescribed trazodone, a medication
that treats depression, anxiety, and insomnia.*°
In addition to seeing Dr. Janarthanan on November 3, 2016,
Plaintiff also attended an appointment for medication training and
support and a counseling assessment.*! At the medication
appointment, a mental status examination was normal except for
limited judgment and insight and illogical thought process.* At
the counseling assessment, Plaintiff and the therapist developed a
treatment plan.**? One of the goals they set was to decrease the use
of alcohol and to cease the use of illicit drugs.”
Plaintiff failed to attend a follow-up appointment on December
a See Tr. 335.
See id.
39 See Tr. 335, 338.
40 See Tr. 331.
“1 See Tr. 340-46.
42 See Tr. 356.
See id.
“a See Tr. 343.
1, 2016.45 On December 2, 2016, Plaintiff reported “increased
anxiety[,] crying sp[e]lls, helpless[ness], hopeless[ness],
worthless[ness], and declin[ing] self care, lack of motivation, and
concentration.”46 However, at a session for skills training and
development on the same day, Plaintiff reported that she was
feeling more positive about herself and her abilities.47 Plaintiff
indicated that she was still using alcohol, stating, “When I drink
the whole box of wine, my brain stops and I can go to sleep.”48 A
mental status examination was normal except for depressed mood and
limited judgment and insight.49
About a week later, Plaintiff attended an appointment for
medication training and support and reported that she “ha[d] been
crying at times, pacing around and having sleeping issues.”50 The
mental-health provider noted that Plaintiff was well groomed and
noted a normal mental status examination with fair judgment and
insight.51 At that appointment, Plaintiff stated that she was
interested in beginning therapy services as recommended.52
45 See Tr. 330.
46 Tr. 325, 352.
47 See Tr. 352.
48 Tr. 353.
49 See Tr. 353.
50 Tr. 349.
51 See Tr. 350.
52 See id.
9
On December 12, 2016, Plaintiff was not at home when the
therapist arrived for scheduled psychotherapy.53 On December 19,
2016, MHMRA telephoned Plaintiff to schedule an appointment and
left a voice message.54
On December 30, 2016, an MHMRA psychotherapist provided an
extended in-home session of cognitive behavioral therapy “due to
severity of symptoms and stressors.”55 The therapist also provided
skills training and development.56 Plaintiff’s mental status
examination returned results within normal limits.57 Plaintiff
identified sleep issues, restlessness, low motivation, dizziness,
and paranoia as medication side effects and articulated an
understanding of the importance of taking her medications daily.58
On January 24, 2017, Plaintiff again failed to appear for a
medication management appointment.59 On February 1, 2019,
Plaintiff’s therapist received a rambling text from Plaintiff in
which she expressed fear of the doctors and nurses and complained
53 See Tr. 361.
54 See Tr. 360.
55 Tr. 51.
56 See Tr. 53-54.
57 See Tr. 54; but see Tr. 51 (describing Plaintiff’s mood as mildly
depressed.
58 See Tr. 54.
59 See Tr. 36.
10
about the side effects of her medication.* In a staffing of
Plaintiff’s case, the therapist reported that Plaintiff had made
contact via cell or text on numerous occasions.®' The therapist
described the contacts as “confusing and erratic.” The staff
discussed options to best work with Plaintiff and addressed
Plaintiff’s issues with appointment attendance and with medication
compliance.
A few days later, Plaintiff’s case was staffed with Dr.
Janarthanan.®* The note from that staffing stated that Plaintiff
“displayed disorganized thinking, loose associations, and
irritability” in her contacts with the therapist and that Plaintiff
continued to use alcohol.®
On February 14, 2017, Plaintiff sent the therapist another
bizarre text.°° When the therapist telephoned Plaintiff about the
message, Plaintiff advised that she felt intimidated by the
therapist because she had contacted Plaintiff on an office line,
and then Plaintiff disconnected the line.®’ Plaintiff immediately
60 See Tr. 48.
6. See Tr. 49.
See id.
See id.
64 See Tr. 47.
° id.
6s See Tr. 42,
See Tr. 43.
11
returned the call to the therapist to “fire” her and disconnected
the line again.°® The therapist then contacted Plaintiff’s mother
who advised that Plaintiff was intoxicated.®* The therapist advised
Plaintiff’s mother of issues with drinking and taking medication.”
On February 20, 2017, Plaintiff appeared for medication
management and reported that she had ceased all of her medications
one month earlier.” Plaintiff endorsed paranoia, depressed mood,
occasional crying spells, occasional helpless, hopeless, and
worthless feelings, increased anxiety, worrying, erratic sleep,
poor appetite, isolating self, lack of concentration, erratic
energy, and fair motivations.” Dr. Jaranthanan noted mild
depression and psychotic symptoms, as well as poor medication
compliance.’* Plaintiff tested positive for alcohol and cannabis.”
According to Dr. Jaranthanan’s note, Plaintiff’s mood was
anxious and dysthymic and her insight and judgment were limited,
but other results from examination were normal.’° He also made the
following assessment of Plaintiff’s functional status:
68 See Tr. 44.
68 See Tr. 45.
” See id.
7 See Tr. 30.
” See id.
” See id.
74 See Tr. 30, 33.
7 See Tr. 30-32.
12
Able to do ADLs [activities of daily living]
Has social skills
Takes care of her grandchildren[.]76
As problem areas, the doctor listed mild depressive symptoms,
psychotic symptoms, and substance abuse.77 He prescribed Prozac for
depression, Risperdal for psychotic symptoms, and Benadryl for
sleep.78
On the same day, Plaintiff attended a psychotherapy session.79
Plaintiff provided feedback on the session: “Very good therapy[.]
The first thing that I am going to do is pour out the wine/beer.”80
B. Application to SSA
On August 24, 2015, Plaintiff applied for disability insurance
benefits claiming an inability to work since November 27, 2014, due
to “[a]mnestic [d]isorder, [r]ecurrent [m]ajor [d]epression,
[r]eading [d]isorder, [d]isorder of [w]ritten [e]xpression, and
[m]athematics [d]isorder.”81 In a disability report dated August
25, 2015, Plaintiff stated that she was diagnosed with dyslexia
while in middle school.82 In a function report completed about the
76 Tr. 32.
77 See Tr. 33.
78 See id.
79 See Tr. 40-41.
80 Tr. 41.
81 Tr. 221; see also Tr. 94, 104, 184-85, 217. The application summary
sets the date of filing as August 25, 2015. See Tr. 184.
82 See Tr. 227.
13
same time, Plaintiff stated:
With my dyslexia, I can’t read. I can’t fill out
paperwork[.] When I try to read big words, my mind goes
blank. When I try to ask for accommodations[,] people
just look at me like I am [n]ormal & don’t help me. I
don[’]t have computer skills, I can[’]t remember [n]ew
information. I am also severely depressed & can[’]t get
out of bed.83
Plaintiff recorded her activities on a typical day: “I first pray
when I wake up, general hygiene, watch [television] for news,
weather, get dressed, call people, eat my meal[,] call for
resour[c]es, take care of grandkids — (some) cook food.”84
Plaintiff reported no difficulty with personal care and no
need for special reminders to take care of her personal needs, to
take medication, or to perform housework.85 Although Plaintiff
stated that she could not complete paperwork, remember, or
comprehend, she indicated that she could pay bills, count change,
use a checkbook/money orders.86 Plaintiff also reported preparing
meals for herself and her family on a daily basis and cleaning for
thirty minutes twice a week.87 She said that she went outside five
days a week and was able to go out alone, shop in grocery and
thrift stores, drive a car, and travel by foot.88
83 Tr. 229.
84 Tr. 230.
85 See Tr. 231.
86 See Tr. 230, 232.
87 See Tr. 231.
88 See Tr. 232.
14
According to the report, Plaintiff’s hobbies included watching
television and engaging in craft activities with her grandchildren
and her social activities included talking on the telephone once a
day, and going to church twice a week.89 Plaintiff said that, at
church, she served as an usher, but could not read the hymns or the
Bible.90
Concerning her interactions with others, Plaintiff reported
that she experienced problems getting along with others,
particularly when others took advantage of her or did not
understand her disabilities and become frustrated with her.91 She
identified memory, completing tasks, concentrating, understanding,
and following instructions as tasks affected by her impairments.92
She further explained that she had difficulty comprehending and
remembering what was told to her; that she could not learn; that
she had trouble following through with activities; and that she
could not remember or carry out instructions that had more than one
step.93 Plaintiff reported being able to get along with authority
figures unless they took advantage of her but had difficulty
handling stress and changes in routine.94
89 See Tr. 233.
90 See id.
91 See Tr. 234.
92 See id.
93 See id.
94 See Tr. 235.
15
On September 30, 2015, the SSA found Plaintiff not disabled at
the initial level of review.95 The medical consultant reviewing
Plaintiff’s record determined that she suffered from a learning
disorder and an affective disorder and considered corresponding
mental impairments described in the regulations as presumptively
disabling (“Listings”),96 specifically Listing 12.02 for organic
mental disorders and Listing 12.04 for depressive, bipolar, and
related disorders.97 Finding that Plaintiff’s impairments neither
met nor equaled either Listing, the medical consultant evaluated
Plaintiff’s residual functional capacity (“RFC”) and opined that
Plaintiff was markedly limited in the ability to understand and
remember detailed instructions and the ability to carry out
detailed instructions and moderately limited in her ability to
respond appropriately to changes in the work setting but that she
was not significantly limited in any other category of mental
limitations.98 The reviewer concluded that Plaintiff was “able to
understand, remember and carry out simple instructions, make simple
decisions, interact [with] others, concentrate for extended
periods, and respond to changes” and, thus, was not disabled.99
95 See Tr. 94-103, 115-19.
96 See 20 C.F.R. Pt. 404, Subpt. P, App. 1.
97 See Tr. 96-98.
98 See Tr. 97-100.
99 Tr. 100; see also Tr. 102.
16
On October 21, 2015, Plaintiff requested reconsideration of
the initial decision and, the following day, provided information
about changes in her condition since the last report.100 The update
simply stated that her “dyslexia, memory and cognitive impairments,
anxiety, depression, [high blood pressure] and panic attacks [were]
worse.”101 Two months after Plaintiff’s request for
reconsideration, the SSA again found Plaintiff not disabled.102 A
different medical consultant reviewed Plaintiff’s file, as well as
additional treatment records, but ultimately concurred with the
prior assessment, stating:
The [claimant] is somewhat limited by [symptoms], but the
impact of these [symptoms] does not wholly compromise the
ability to function independently, appropriately, and
effectively on a sustained basis. Functional limitations
are less than marked. The alleged severity and limiting
effects from the impairments are not wholly supported.103
On December 24, 2015, Plaintiff requested a hearing before an
ALJ.104 A disability report dated December 28, 2015, added no new
information except that Plaintiff found it “very hard to do any
physical activities” because of “dyslexia, memory and cognitive
impairments, anxiety, depression, high blood pressure, and panic
100 See Tr. 124, 251.
101 Tr. 251.
102 See Tr. 104-14, 125-28.
103 Tr. 108 (emphasis omitted); see also Tr. 107, 109-11.
104 See Tr. 129-30.
17
attacks.”105 A year, almost to the day, after that last disability
report, the ALJ granted Plaintiff’s request and scheduled the
hearing on February 27, 2017.106
As of November 2016, Plaintiff was caring for two of her three
grandchildren.107
C. Hearing
During the hearing, Plaintiff, a vocational expert, and a
medical expert testified.108 Plaintiff was represented by an
attorney.109 The attorney presented Plaintiff’s theory of the case
in which he acknowledged the “scantiness of the record” and
suggested “fill[ing] in the gaps with testimony.”110 The ALJ began
the hearing by examining Plaintiff about her work history.111
Plaintiff exhibited difficulty in answering questions and
remembering information such as prior work duties and dates she
last worked.112 When the ALJ asked Plaintiff for her address,
Plaintiff read it from her driver’s license.113 During questioning
105 Tr. 263; see also Tr. 258-62, 264-65.
106 See Tr. 146.
107 See Tr. 333.
108 See Tr. 72-93.
109 See Tr. 72, 74.
110 Tr. 76.
111 See Tr. 76-79.
112 See Tr. 78-79.
113 See Tr. 80.
18
by her attorney, Plaintiff did not provide audible, substantive
answers, and the court order a five-minute recess.114
When the hearing reconvened, the ALJ began questioning the
medical expert, Glenn Sternes, Ph.D., (“Dr. Sternes”).115 In
response to the request that he identify Plaintiff’s medically
determinable impairments, Dr. Sternes provided a summary of Dr.
Muehe’s evaluation and an appointment at MHMRA.116 Dr. Sternes
identified Listings 12.02 for learning disorders and memory issues,
12.04 for depressive, bipolar, and related disorders, and 12.09 for
alcohol abuse.117 Regarding the last of these, Dr. Sternes said
that he needed more information concerning continuing alcohol
abuse.118
The ALJ then asked Dr. Sternes to rate certain areas of mental
limitation considered in all three of the identified Listings, to
which Dr. Sternes opined that Plaintiff’s degree of limitation for
understanding, remembering, or applying information was moderate;
her degree of limitation for interacting with others was mild to
moderate; her degree of limitation for concentration, persistence,
or maintaining pace was marked; and her degree of limitation for
114 See Tr. 81-82.
115 See Tr. 82.
116 See Tr. 83-84.
117 See Tr. 84.
118 See id.
19
adapting or managing herself was marked.119 Dr. Sternes concluded
that Plaintiff met the criteria of Listing 12.04.120 During Dr.
Sternes’ testimony, Plaintiff blurted, “My daughter gave me a
shower today.”121
The ALJ asked Dr. Sternes if the removal of drugs or alcohol
would result in an improvement in Plaintiff’s symptoms, and he
responded, “It’s hard to say, Your Honor. It really is. I don’t
know whether abuse is continuing, if medications are being taken,
a number of things would enter into that.”122 He confirmed that the
most recent note in the record was from 2015 and indicated that
Plaintiff had been sober for six months.123
Byron Pettingill (“Mr. Pettingill”), vocational expert,
classified Plaintiff’s prior job as a beautician as skilled and
customarily performed at the light exertional level, her prior job
as a janitor as unskilled and customarily performed at the medium
exertional level, and her job as a bus driver as semiskilled and
customarily performed at medium exertional level.124 The ALJ
described a hypothetical individual of the same age, education, and
past work experience as Plaintiff who could “understand, remember
119 See Tr. 84-85.
120 See Tr. 85.
121 Id.
122 Tr. 85-86.
123 See Tr. 86.
124 See Tr. 87.
20
and carry out simple instructions, make simple decisions, interact
with others, concentrate for extended periods and respond to
changes.”125 Mr. Pettingill opined that the hypothetical individual
could perform Plaintiff’s prior job as a janitor.126 He also
identified three additional jobs available in the national economy
that the hypothetical individual could perform: (1) laundry worker,
unskilled at the medium exertional level; (2) office cleaner,
unskilled at the light exertional level; and (3) final assembler,
unskilled at the sedentary exertional level.127
When asked by Plaintiff’s attorney to assume a hypothetical
individual of the same age, education, and work experience as
Plaintiff but unable to establish interpersonal relationships
sufficient to have a working relationship with coworkers and unable
to sustain attention and concentration for two hours, Mr.
Pettingill confirmed that the individual would not be able to
perform Plaintiff’s past relevant work or any other alternative
work in the national economy.128 During Mr. Pettingill’s testimony,
Plaintiff blurted, “I didn’t recall what Ted was doing.”129
Near the conclusion of the hearing, the ALJ returned briefly
125 Id.
126 See Tr. 88.
127 See Tr. 88-89.
128 See Tr. 89.
129 Tr. 87.
21
to questioning Plaintiff.'* The ALJ noted that Plaintiff had
continued to work after the head-trauma injury twenty years earlier
and asked Plaintiff what had happened recently that made her unable
to continue working.**! Plaintiff responded, “I don’t remember.”**?
After that response, the ALJ attempted to conclude the hearing, but
Plaintiff’s attorney indicated that Plaintiff wanted to say
something else.’** Plaintiff said, “My daughter give [sic] me a
bath today.”'** In response to the ALJ’s followup questioning,
Plaintiff stated that she and her daughter lived together and that
her daughter normally helped with bathing because Plaintiff had
fallen in the tub.'*
Plaintiff continued, “[A] lot of times when I’m doing
different stuff, they’ve got to make sure I use the right type of
chemicals or anything to wash off because I’m allergic to a lot of
stuff.”**® The ALJ asked Plaintiff if there was any other
information she would like the ALJ to consider.’*’ This colloquy
transpired:
130 See Tr. 90.
et See id.
□□ id.
™ See id.
m id.
18° See Tr. 91.
ue id.
m See id.
22
CLMT: I don’t know. You’re pretty.
ALJ: Thank you. So are you. Appreciate it.
Anything you want me to consider as far as whether you
think you need to tell me if you can go back to work at
all?
CLMT: I’m not sure if I can do it.
ALJ: Okay.
CLMT: I don’t know.
ALJ: Okay. Well I do have your medical records.
Those have been exhibited. I will consider the testimony
that I’ve been presented with today.138
D. Commissioner’s Decision
On April 4, 2017, the ALJ issued an unfavorable decision.139
The ALJ found that Plaintiff had not engaged in substantial gainful
activity since November 27, 2014, the alleged onset date.140 The
ALJ recognized the following impairments as severe: “affective mood
disorder, learning disorder, alcohol abuse and obesity.”141 She
identified no nonsevere impairments.142 Regarding obesity, the ALJ
stated that Plaintiff’s Body Mass Index (“BMI”) was in the obese
range.143 According to the ALJ, obese individuals “may have
limitations in any of the exertional or postural functions, in
138 See Tr. 91-92.
139 See Tr. 12-27.
140 See Tr. 17.
141 Id. (emphasis omitted).
142 See Tr. 17-18.
143 See Tr. 18.
23
[their] ability to manipulate objects, and in [their] tolerance of
extreme heat, humidity, or hazards.”144 The ALJ stated that she had
considered the effects of Plaintiff’s obesity when assessing her
RFC.145
At the Listing step, the ALJ found that Plaintiff did not meet
the requirements of any Listing specifically addressing Listings
12.02 and 12.04.146 The ALJ addressed Dr. Sternes’ hearing
testimony, stating:
Dr. Sternes, a board certified psychologist, testified
that the claimant has a mood disorder, a learning
disorder and alcohol abuse. Dr. Sternes testified that
he considered Listings 12.02, 12.04 and 12.09.[147] Dr.
Sternes testified that the claimant would meet the
[paragraphs] A & B criteria. Dr. Sternes was of the
further testimony [sic] that the claimant would meet
Listing 12.04. Dr. Sternes testified that it was hard to
say if the claimant’s symptoms would improve if alcohol
was removed. He is not sure if the alcohol abuse is
continued but the evidence indicates that the claimant
has been sober for six months.148
In deciding what weight to afford Dr. Sterne’s testimony, the ALJ
concluded:
Dr. Sternes did not adequately take into account the
claimant’s alcohol abuse. Dr. Sternes testified that he
was not sure, if the claimant stopped abusing alcohol[,]
that her symptoms would improve. The fact that the
144 Id.
145 See id.
146 See Tr. 18-20.
147 Listing 12.09 is now reserved. Previously, Listing 12.09 pertained
to substance addiction disorders.
148 Tr. 19.
24
claimant is able to care for her two grandchildren
indicates that she is able to concentrate and maintain
persistence and pace. Therefore, little weight is given
to Dr. Sternes’[] testimony.149
On her review of the Listings, the ALJ cited to Dr. Muehe’s
evaluation in support of the finding that Plaintiff’s mental
impairments did not meet paragraph B, which requires that they
result in at least one extreme or two marked limitations.150 The
ALJ also determined that the evidence did not establish the
paragraph C criteria.151
The ALJ found Plaintiff able to perform a “full range of work
at all exertional levels but with some nonexertional
limitations.”152 Specifically, the ALJ found Plaintiff capable of
understanding, carrying out, and remembering simple instructions,
making simple decisions, interacting with others, concentrating for
extended periods, and responding to workplace changes.153
The ALJ outlined the two-step process for evaluating symptoms
and employed it to conclude that Plaintiff did have underlying
medical conditions that could cause Plaintiff’s symptoms but found
that the objective clinical findings did not support the degree of
149 Tr. 22.
150 See Tr. 19.
151 See id.
152 Tr. 20 (emphasis omitted).
153 See id.
25
limitation alleged.154 As an example, the ALJ contrasted
Plaintiff’s testimony “that she suffered from significant
limitations” with her admission that she was not taking any
prescribed medication.155 The ALJ continued:
[The claimant] has not sought emergency room care on a
frequent basis and has not been hospitalized for any
duration for any condition since she alleged she became
disabled. The claimant has not received the type of
mental health treatment one would expect for a totally
disabled individual. More specifically, in August 2016,
she stated that she ha[d] not had any treatment in the
last eight years. In November 2016, she missed her
appointment.156
While acknowledging that Plaintiff’s described ADLs were
fairly limited, the ALJ discounted the value of Plaintiff’s
allegations in showing disability because they could not be
“objectively verified with any reasonable degree of certainty” and
because, even if true, attributing the alleged degree of limitation
to Plaintiff’s medical condition was difficult in light of “the
relatively weak medical evidence and other factors discussed in
this decision.”157 In fact, the ALJ noted, the record contained no
“opinions from treating or examining physicians indicating that
[Plaintiff was] disabled or even ha[d] limitations greater than
154 See Tr. 20, 22.
155 Tr. 21.
156 Id.; see also Tr. 22 (reiterating that the medical records lacked
evidence of “repeated hospitalizations or aggressive forms of therapy that would
be expected if [Plaintiff] experienced severe, persistent, unremitting
symptoms”).
157 Tr. 21; see also Tr. 22 (emphasizing that Plaintiff’s lack of
treatment during the relevant period was “a major issue”).
26
those determined in this decision.”158 One “other factor”
considered by the ALJ in deciding how limiting Plaintiff’s symptoms
were was that she cared for two of her grandchildren, which could
be “quite demanding both mentally and physically.”159
The ALJ also found Plaintiff’s ability to pass a test to
become a beautician and the lack of evidence indicating ongoing
issues resulting from head trauma counted against the reliability
of her subjective testimony regarding the degree of her
limitations.160 The ALJ acknowledged that Plaintiff wore mismatched
shoes to the hearing but found that behavior inconsistent with
evidence that Plaintiff’s grooming habits were good.161 The ALJ
remarked that the “inconsistent information” provided by Plaintiff
was not necessarily “the result of a conscious intention to
mislead,” but her testimony was unsupported by objective findings,
not entirely consistent with the record, and exaggerated.162
The ALJ also discounted the value of the GAF score because,
among other reasons, it is a subjective assessment at one point in
time and offers little in assessing Plaintiff’s level of
functioning over the course of a year or more.163 In contrast, the
158 Tr. 21.
159 Id.
160 See Tr. 22.
161 See id.
162 Id.
163 See Tr. 21.
27
ALJ found the medical consultants’ RFC opinions that Plaintiff was
capable of a range of unskilled work to be entitled to great
weight.
The ALJ found, based on the vocational expert’s testimony,
that Plaintiff was able to perform her past relevant work as a
janitor.164 Nevertheless, the ALJ considered whether Plaintiff was
capable of performing other jobs in the national economy.165 The
ALJ again relied on the vocational expert’s opinion that an
individual with Plaintiff’s age, education, work experience, and
RFC would be able to perform the jobs of office cleaner, laundry
worker, and final assembler.166
Therefore, the ALJ found that Plaintiff was not disabled at
any time from November 27, 2014, the alleged onset date, through
April 4, 2017, the date of the ALJ’s decision.167
On June 2, 2017, Plaintiff appealed the ALJ’s decision.168 On
March 6, 2018, the Appeals Council denied Plaintiff’s request for
review, thereby transforming the ALJ’s decision into the final
decision of the Commissioner.169 After receiving the Appeals
Council’s denial, Plaintiff timely sought judicial review of the
164 See Tr. 23.
165 See Tr. 23-24.
166 See Tr. 24.
167 See Tr. 16, 24.
168 See Tr. 183.
169 See Tr. 1-5.
28
decision by this court.170
II. Standard of Review and Applicable Law
The court’s review of a final decision by the Commissioner
denying disability benefits is limited to the determination of
whether: 1) the ALJ applied proper legal standards in evaluating
the record; and 2) substantial evidence in the record supports the
decision. Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002).
A. Legal Standard
In order to obtain disability benefits, a claimant bears the
ultimate burden of proving she is disabled within the meaning of
the Act. Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991).
Under the applicable legal standard, a claimant is disabled if she
is unable “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); see also
Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994). The
existence of such a disabling impairment must be demonstrated by
“medically acceptable clinical and laboratory diagnostic” findings.
42 U.S.C. § 423(d)(3), (d)(5)(A); Jones v. Heckler, 702 F.2d 616,
620 (5th Cir. 1983).
To determine whether a claimant is capable of performing any
170 See Tr. 1-3; Hull v. Berryhill, H-18-mc-1205, Doc. 1, Application to
Proceed In Forma Pauperis Dated Apr. 23, 2018.
29
“substantial gainful activity,” the regulations provide that
disability claims should be evaluated according to the following
sequential five-step process:
(1) 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; (2) a claimant will
not be found to be disabled unless [s]he has a “severe
impairment;” (3) a claimant whose impairment meets or is
equivalent to [a Listing] will be considered disabled
without the need to consider vocational factors; (4) a
claimant who is capable of performing work that [s]he has
done in the past must be found “not disabled;” and (5) if
the claimant is unable to perform h[er] previous work as
a result of h[er] impairment, then factors such as h[er]
age, education, past work experience, and [RFC] must be
considered to determine whether [s]he can do other work.
Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994); see also 20
C.F.R. § 404.1520. The analysis stops at any point in the process
upon a finding that the claimant is disabled or not disabled.
Greenspan, 38 F.3d at 236.
B. Substantial Evidence
Substantial evidence “means—and means only—such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.” Biestek v. Berryhill, U.S. , 139 S. Ct.
1148, 1154 (2019)(internal quotations marks omitted). “[W]hatever
the meaning of ‘substantial’ in other contexts, the threshold for
such evidentiary sufficiency is not high.” Id. It only requires
“more than a mere scintilla.” Id.
The Commissioner has the responsibility of deciding any
conflict in the evidence. Id. If the findings of fact contained
30
in the Commissioner’s decision are supported by substantial record
evidence, they are conclusive, and this court must affirm. 42
U.S.C. § 405(g).
Only if no credible evidentiary choices of medical findings
exist to support the Commissioner’s decision should the court
overturn it. See Salmond v. Berryhill, 892 F.3d 812, 819 (5th Cir.
2018). In applying this standard, the court is to review the
entire record, but the court may not reweigh the evidence, decide
the issues de novo, or substitute the court’s judgment for the
Commissioner’s judgment. Brown v. Apfel, 192 F.3d 492, 496 (5th
Cir. 1999). In other words, the court is to defer to the decision
of the Commissioner as much as is possible without making its
review meaningless. Id.
III. Analysis
Plaintiff requests judicial review of the ALJ’s decision to
deny disability benefits. Plaintiff asserts that the ALJ’s
decision contains the following errors:
[A.] The ALJ erred in failing to adopt the RFC
recommended by the testifying [medical expert].
[B.] The RFC assessment is simply conclusory and does
not contain any rationale or reference to the
supporting evidence, as required by [Social
Security Ruling (“SSR”)] 96-8p.
[C.] While the ALJ concluded that plaintiff can perform
past relevant work, the ALJ provided no specific
findings or analysis regarding the physical and
mental demands of this work, as required by SSR 82-
62.
31
[D.] The ALJ failed to fulfill the duty imposed by SSR
82-62 to fully question plaintiff and develop the
record regarding the physical and mental demands of
plaintiff’s past relevant work.
[E.] The ALJ’s RFC is inconsistent with a finding of
“severe” mental impairments resulting in “moderate
limitations” in concentration, persistence and pace
because the RFC does not contain the limitations
normally associated with that level of impairment.171
The court addresses Plaintiff’s arguments under broad headings of
Listing 12.04 for depressive, bipolar, and related disorders, RFC,
and Past Relevant Work. Defendant argues that the ALJ’s decision
is legally sound and is supported by substantial evidence.
A. Listing 12.04 for Depressive, Bipolar, and Related Disorders
At the hearing the testifying medical expert opined that
Plaintiff’s depressive disorder met Listing 12.04. Plaintiff
argues that the ALJ failed to “adequately articulate the rationale
for failing to adopt” this opinion and erred in developing an RFC
that contradicted the medical expert’s opinion.172
The regulations clearly state that an ALJ is “not required to
adopt any prior administrative medical findings” but must follow
171 Doc. 16, Pl.’s Reply to Def.’s Mot. for Summ. J. pp. 1-2.
Plaintiff’s motion also includes an argument that the ALJ failed to include any
limitations related to the severe impairment of obesity. The court assumes that
Plaintiff did not list that argument in her reply because she was no longer
pursuing it. Nevertheless, the court notes that the ALJ identified potential
limitations resulting from obesity and stated that she had considered the effects
of obesity on Plaintiff. A diagnosis of obesity or even the ALJ’s recognition
of it as a severe impairment does not direct a finding of any or all of the
possible limitations associated with obesity. The ALJ is tasked with determining
which of the possible limitations apply to Plaintiff. In this case, substantial
evidence supports the ALJ’s decision not to include any of the limitations
generally associated with obesity because the record contains absolutely no
evidence that Plaintiff was limited in any way by her weight.
172 Doc. 14, Pl.’s Mot. for Summ. J. pp. 3-4.
32
the requirements of 20 C.F.R. §§ 404.1520b, 404.1520c, 404.1527 in
considering, evaluating, and articulating findings on
administrative medical findings. 20 C.F.R. § 404.1513a. Pertinent
here, an ALJ need “not defer or give any specific evidentiary
weight . . . to . . . prior administrative medical finding(s)” but
must articulate the consideration of those findings and how
persuasive the ALJ found them to be based on their supportability
and consistency.173 20 C.F.R. § 404.1520c.
Plaintiff’s contention that the ALJ failed to articulate her
rationale for not adopting Dr. Sternes’ opinion is plainly
incorrect. In her decision, the ALJ recounted Dr. Sternes’
opinion, noting that he expressed uncertainty whether Plaintiff had
maintained sobriety or whether Plaintiff’s symptoms would have
improved absent substance abuse. Moreover, the ALJ discussed her
weight assessment, addressing both supportability and consistency.
On the former, the ALJ stated that Dr. Sternes’ opinion did not
adequately account for Plaintiff’s alcohol abuse; on the latter,
173 Plaintiff does not base her argument on the relevant regulations
cited here. Instead, she cites non-precedential case law that is not on point.
Rohrberg v. Apfel, 26 F. Supp.2d 303, 311 (D. Mass. 1998), addresses the ALJ’s
obligations with regard to the weight given opinions of treating physicians and
the ALJ’s ignoring of medical reports in favor of determining RFC based on “bare
medical findings. Kelly v. Chater, 952 F. Supp. 419, 426 (W.D. Tex. 1996)
likewise offers little support to Plaintiff’s position on Dr. Sternes’ Listing
determination. There, that court is also addressing the weighing of a treating
physician’s opinion but recognizes the ALJ’s authority to determine the
credibility of medical experts, a point that does not appear to support
Plaintiff’s position. See id. The quote Plaintiff presents from that case
states that the ALJ must explain the reasons for rejecting any favorable evidence
but cites a case in which the favorable evidence is subjective complaints not the
opinion of a medical expert. See id. (citing Falco v. Shalala, 27 F.3d 160, 163
(5th Cir. 1994). Regardless, the ALJ did explain her reasons as discussed
herein.
33
the ALJ cited Plaintiff’s caring for her grandchildren as
inconsistent with the limitations he imposed on Plaintiff’s ability
to concentrate and maintain persistence and pace. Because the ALJ
found Dr. Sternes’ opinion entitled to little weight, she did not
adopt it.
Moreover, evidence in the record provides substantial evidence
in support of a finding that Plaintiff’s mental impairments did not
meet a Listing. At Dr. Muehe’s April 2015 evaluation, Plaintiff
reported six months of sobriety. But her treatment records from
August 2016 to February 2017 reflect extensive alcohol usage, as
well as cannabis usage. During those six months, Plaintiff
exhibited psychotic symptoms, which, on at least one documented
occasion, manifested while she was intoxicated. Additionally, even
during the period of Plaintiff’s manifestation of more severe
symptomology and substance abuse, Plaintiff’s treating physician
assessed Plaintiff as having largely normal mental status
examinations and found her capable of ADLs, social skills, and
caring for her grandchildren, which are activities that are
inconsistent with Listing-level depression. Finally, the reviewing
medical consultants at the initial and reconsideration levels both
found, in September 2015 and December 2015, that Plaintiff’s
impairments did not meet any Listing.
For these reasons, the court agrees that Dr. Sternes’ opinion
that Plaintiff met Listing 12.04 is not supported by and is
34
inconsistent with the administrative record.
B. RFC
Plaintiff contends that the ALJ’s RFC assessment is conclusory
and lacks both rationale and references to the evidence. In a
related argument, Plaintiff argues that the ALJ failed to include
limitations related to concentrating, persisting, or maintaining
pace even though she found Plaintiff moderately limited in that
area.
An individual’s RFC is her utmost remaining ability to work
despite all of the limitations resulting from her impairment. See
20 C.F.R. § 404.1545(a); Villa v. Sullivan, 895 F.2d 1019, 1023 (5th
Cir. 1990). In evaluating the RFC, the ALJ is directed by the
regulations to consider how the individual’s impairments affect her
physical, mental, and other abilities, as well as the total
limiting effects of her impairment. See 20 C.F.R. § 404.1545(b)-
(e).
The ALJ is required to perform and discuss a function-by-
function assessment of “an individual’s ability to do sustained
work-related physical and mental activities in a work setting on a
regular and continuing basis.” Myers v. Apfel, 238 F.3d 617, 620
(5th Cir. 2001)(quoting SSR 96-8p, 1996 WL 374184, at *1). An
individual must show that she is “so functionally impaired” by the
condition that she is precluded from engaging in any substantial
gainful activity. Hames v. Heckler, 707 F.2d 162, 165 (5th Cir.
35
1983). The court must give deference to the ALJ’s evaluation of
the plaintiff’s subjective complaints if supported by substantial
record evidence. See Villa, 895 F.2d at 1024. The ultimate
responsibility for determining the individual’s RFC lies with the
ALJ. 20 C.F.R. § 404.1527(d)(2); Taylor v. Astrue, 706 F.3d 600,
602-03 (5th Cir. 2012).
Plaintiff claimed disability as of November 27, 2014. There
was no medical evidence of Plaintiff’s condition from that date
until April 2015 when Dr. Muehe performed a comprehensive
evaluation. That evaluation was the only medical record addressing
Plaintiff’s condition in 2015. Dr. Muehe clearly found Plaintiff
capable of work limited to operating simple equipment, with ample
time and instruction, limited number of steps, access to a
supervisor, and experiential training. Dr. Muehe did not indicate
any greater limitations to accommodate difficulties with
concentration, persistence, and pace.
The only other medical records were from a six-month period of
treatment at MHMRA beginning in the latter half of 2016 through the
first two months of 2017. During the short period of treatment at
MHMRA, Plaintiff missed multiple appointments, was noncompliant
with medications, and continued to abuse alcohol and cannabis.
Even so, Plaintiff only briefly exhibited psychotic symptoms, an
insufficient period of time to qualify longitudinally for
disability.
36
The record contained a function report from September 2015 and
an update from December 2015. The former listed high-level
functionality based on self-reported ADLs, including preparing
meals, attending church, caring for her grandchildren, performing
household chores, and completing tasks without reminders. The
latter simply stated that her condition had worsened. Plaintiff’s
hearing testimony provided no useful information about her
condition. Two medical consultants reviewed the record and found
her not disabled.
Given the “scantiness of the record,” the ALJ appropriately
relied significantly on the absence of medical treatment and
Plaintiff’s reports of her ADLs. The ALJ addressed all of the
medical and other evidence in the record. She satisfied the
discussion requirements to the extend she could with the limited
evidence. She specifically found the Plaintiff’s caregiving for
her grandchildren belied limitations in Plaintiff’s ability to
concentrate and to maintain persistence and pace.
The ALJ satisfied all of her obligations with regard to
weighing the evidence and determining Plaintiff’s RFC and was
entitled to rely on the vocational expert’s responses to the ALJ’s
hypothetical questions concerning jobs that Plaintiff could
perform.
C. Past Relevant Work
Plaintiff challenges the ALJ’s determination that Plaintiff
37
could perform her past relevant work as a janitor on the basis that
the ALJ failed to provide specific findings or analysis regarding
the demands of the work and failed to fully question Plaintiff and
develop the record with regard to those demands.
The ALJ’s responsibility at step four is to determine whether
the claimant’s impairments would prevent her from doing past
relevant work. See 20 C.F.R. § 404.1520(e). The ALJ should reach
this determination by comparing the claimant’s RFC with the
physical and mental demands of her past work. See id. To
determine the physical and mental demands of past work, the SSA
will ask the claimant for information about that work. See 20
C.F.R. § 404.1560(b)(2). The SSA may also rely on information from
a vocational expert. See id. The claimant bears the burden of
demonstrating that she is unable to perform her past relevant work.
See Brown v. Astrue, 344 F. App’x 16, 19 (5th Cir.
2009)(unpublished).
Here, the ALJ determined Plaintiff’s RFC and found that the
job of janitor did not require any work-related activities
precluded by her RFC. In the hearing, the ALJ attempted to elicit
information from Plaintiff about her past relevant work, but
Plaintiff exhibited an inability to recall any helpful information.
The ALJ pursued the line of questioning until its futility was
apparent. The record contained job histories that listed the
position of janitor but Plaintiff failed to provide information on
38
the mental and physical demands of the janitorial position as
performed by Plaintiff. The ALJ, therefore relied on the hearing
testimony of the vocational expert, who was familiar with the
demands of that position as usually performed.
Even if the ALJ made any procedural error in the Step Four
assessment, which the court explicitly does not find, the error was
harmless because the ALJ proceeded to Step Five and found that
Plaintiff could perform other jobs available in the national and
regional economies. See Taylor, 706 F.3d at 603 (“[P]rocedural
perfection is not required unless if affects the substantial rights
of a party.”). The ALJ properly found that Plaintiff was not
disabled at any time from November 27, 2014, through April 4, 2017.
IV. Conclusion
Based on the foregoing, the court DENIES Plaintiff’s motion
and GRANTS Defendant’s motion.
SIGNED in Houston, Texas, this 30th day of September, 2019.
39