Winter v. Kijakazi

IN THE UNITED STATES DISTRICT COURT August 31, 2023

FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

§

ROBIN W.,1 §

§

Plaintiff, §

§ No. 4:22-cv-1344

v. §

§

KILOLO KIJAKAZI, §

Acting Commissioner of Social §

Security, §

§

Defendant. §

MEMORANDUM AND ORDER

Plaintiff Robin W. (“Plaintiff”) filed this suit seeking judicial review of an

administrative decision. ECF No. 1. Jurisdiction is predicated upon 42 U.S.C.

§ 405(g). Plaintiff appeals from the decision of the Commissioner of the Social

Security Administration (“Commissioner”) denying Plaintiff’s claim for disability

insurance benefits under Title II of the Social Security Act (“the Act”).2 The Parties

filed cross-motions for summary judgment. Pl.’s MSJ, ECF No. 9; Def.’s MSJ, ECF

No. 11. Plaintiff seeks an order rendering benefits or remand for further

1 Pursuant to the May 1, 2018 “Memorandum Re: Privacy Concern Regarding Social Security and

Immigration Opinions” issued by the Committee on Court Administration and Case Management

of the Judicial Conference of the United States, the Court uses only Plaintiff’s first name and last

initial.

2 On June 29, 2022, based on the parties’ consent, the case was transferred to this Court to conduct

all proceedings pursuant to 28 U.S.C. § 636(c). Order Transferring, ECF No. 7.

consideration, arguing that the ALJ erred by not considering Plaintiff’s wife’s

written statement, and failing to include limitations for all of Plaintiff’s mental

impairments in her RFC assessment. ECF No. 9. Commissioner counters that “the

ALJ properly considered the evidence in the record, including opinions of record,

and credited the limitations that were the most persuasive and consistent with the

record as a whole.” ECF No. 11-1 at 11. Based on the briefing, the record, and the

applicable law, the Court determines that the ALJ’s determination is supported by

substantial evidence; therefore, Plaintiff’s motion for summary judgment should be

denied and Commissioner’s motion for summary judgment should be granted.

I. BACKGROUND

Plaintiff is 42 years old, R. 38, 172,3 and completed two years of college.

R. 38, 209. Plaintiff worked as a guard, a supervisor, and a buyer. R. 24–25, 50–51,

179–94, 222–28. Plaintiff alleges a disability onset date of October 19, 2018. R. 172.

Plaintiff claims she suffers physical and mental impairments. R. 34–50.

On July 10, 2019, Plaintiff filed her application for disability insurance

benefits under Title II of the Act. R. 13, 170–78. Plaintiff based4 her application on

3 “R.” citations refer to the electronically filed Administrative Record, ECF No. 6.

4 The relevant time period is October 19, 2018—Plaintiff’s alleged onset date—through December

31, 2023—Plaintiff’s last insured date. R. 15. The Court will consider medical evidence outside

this period to the extent it demonstrates whether Plaintiff was under a disability during the relevant

time frame. See Williams v. Colvin, 575 F. App’x 350, 354 (5th Cir. 2014); Loza v. Apfel, 219 F.3d

378, 396 (5th Cir. 2000).

her seizure disorder, left ankle injury, left knee injury, migraines, and hypothyroid.

R. 197–204, 208, 247–55. The Commissioner denied her claim initially, R. 57–70,

and on reconsideration. R. 72–99.

A hearing was held before an Administrative Law Judge (“ALJ”). An attorney

represented Plaintiff at the hearing. R. 35. Plaintiff and a vocational expert (“VE”)

testified at the hearing. R. 38, 51. The ALJ issued a decision denying Plaintiff’s

request for benefits.5 R. 10–30. The Appeals Council denied Plaintiff’s request for

5 An ALJ must follow five steps in determining whether a claimant is disabled. 20 C.F.R.

§ 416.920(a)(4). The ALJ here determined Plaintiff was not disabled at step five. R. 25–26. At step

one, the ALJ found that Plaintiff did not engage in substantial gainful activity during the period

from her alleged onset date through her date last insured. R. 15 (citing 20 C.F.R. 404.1571 et seq.).

At step two, the ALJ found that Plaintiff has the following severe impairments: morbid obesity,

history of seizure disorder, epilepsy, history of ankle fracture with subchondral cyst formation and

chondral defects, history of left knee contusion anteriorly, complex regional pain syndrome

(CRPS), mild neurocognitive disorder, history of partial right common peroneal neuropathy, and

anxiety disorder. R. 15 (citing 20 C.F.R. 404.1520(c)). At step three, the ALJ determined that

Plaintiff did not have an impairment or combination of impairments that met or medically equaled

the severity of one of the listed impairments in the regulations that would lead to a disability

finding. R. 16 (referencing 20 C.F.R. 404.1520(d), 404.1525, and 404.1526). The ALJ found that

Plaintiff has the RFC to perform sedentary work as defined in 20 CFR § 404.1567(b). R. 19.

However, the ALJ added limitations, including that Plaintiff could push, pull, lift, and/or carry 10

pounds, frequently and occasionally, sit for 6 hours in an 8-hour workday, stand and/or walk 2

hours in an 8-hour workday, would require a sit and/or stand option every 30 minutes, could not

engage in crouching, crawling, kneeling, or climbing of scaffolds, ropes, and ladders, could

occasionally climb stairs and ramps, should avoid concentrated exposure to extreme heat and cold,

exposure to dangerous machinery, unprotected heights, open waters, or open flames, should be

limited to performing simple, routine, repetitious work one, two, or three step instructions, and

should avoid fast production pace and strict production quotas. R. 19. At step four, the ALJ

determined that through the date last insured, Plaintiff was unable to perform any past relevant

work. R. 24. At step five, based on the testimony of the VE and a review of the report, the ALJ

concluded that considering Plaintiff’s age, education, work experience, and RFC, there were jobs

that exist in significant numbers in the national economy that Plaintiff could perform, including

document preparer, optical goods worker, and final assembler. R. 25–26. Therefore, the ALJ

concluded that Plaintiff was not disabled. R. 26.

review, upholding the ALJ’s decision to deny benefits. R. 1–6. Plaintiff appealed the

Commissioner’s ruling to this court. Compl., ECF No. 1.

II. STANDARD OF REVIEW OF COMMISSIONER’S DECISION.

The Social Security Act provides for district court review of any final decision

of the Commissioner that was made after a hearing in which the claimant was a

party. 42 U.S.C. § 405(g). In performing that review:

The court shall have power to enter, upon the pleadings and transcript of the

record, a judgment affirming, modifying, or reversing the decision of the

Commissioner . . ., with or without remanding the cause for a rehearing. The

findings of the Commissioner . . . as to any fact, if supported by substantial

evidence, shall be conclusive[.]

Id. Judicial review of the Commissioner’s decision denying benefits is limited to

determining whether that decision is supported by substantial evidence on the record

as a whole and whether the proper legal standards were applied. Id.; Boyd v. Apfel,

239 F.3d 698, 704 (5th Cir. 2001); Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000).

“Substantial evidence” means “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148,

1154 (2019) (quotations omitted). It is “more than a scintilla but less than a

preponderance.” Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000). The “threshold

for such evidentiary sufficiency is not high.” Biestek, 139 S. Ct. at 1154.

The Court weighs four factors to determine “whether there is substantial

evidence of disability: (1) objective medical facts; (2) diagnoses and opinions of

treating and examining physicians; (3) subjective evidence of pain and disability;

and (4) the claimant’s age, education, and work history.” Conley-Clinton v. Saul,

787 F. App’x 214, 216 (5th Cir. 2019) (citing Martinez v. Chater, 64 F.3d 172, 174

(5th Cir. 1995)).

A reviewing court may not reweigh the evidence in the record, try the issues de

novo, or substitute its judgment for that of Commissioner, even if the evidence

preponderates against Commissioner’s decision. Brown v. Apfel, 192 F.3d 492, 496

(5th Cir. 1999). Even so, judicial review must not be “so obsequious as to be

meaningless.” Id. (quotations omitted). The “substantial evidence” standard is not a

rubber stamp for Commissioner’s decision and involves more than a search for

evidence supporting Commissioner’s findings. Singletary v. Brown, 798 F.2d 818,

822–23 (5th Cir. 1986); Cook v. Heckler, 750 F.2d 391, 393 (5th Cir. 1985). Rather,

a reviewing court must scrutinize the record as a whole, taking into account whatever

fairly detracts from the substantiality of evidence supporting Commissioner’s

findings. Singletary, 798 F.2d at 823. “Only where there is a ‘conspicuous absence

of credible choices or no contrary medical evidence’ will we find that the substantial

evidence standard has not been met.” Qualls v. Astrue, 339 F. App’x 461, 464 (5th

Cir. 2009).

III. THE SHIFTING BURDEN OF PROOF.

An individual claiming entitlement to disability insurance benefits under the

Act has the burden of proving her disability. Johnson v. Bowen, 864 F.2d 340, 343–

44 (5th Cir. 1988). The Act defines disability as the “inability to engage in any

substantial gainful activity by reason of any medically determinable physical or

mental impairment which can be expected to result in death, or which has lasted or

can be expected to last for a continuous period of not less than twelve months.”

42 U.S.C. § 423(d) (1)(A) (2000). The impairment must be proven through

medically accepted clinical and laboratory diagnostic techniques. 42 U.S.C.

§ 423(d)(3) (2000). The impairment must be so severe that the claimant is “incapable

of engaging in any substantial gainful activity.” Foster v. Astrue, No. H-08-2843,

2011 WL 5509475, at *6 (S.D. Tex. Nov. 10, 2011) (citing Anthony v. Sullivan, 954

F.2d 289, 293 (5th Cir. 1992)). A claimant is eligible for benefits only if the onset

of the impairment started by the date the claimant was last insured. Id. (citing Ivy v.

Sullivan, 898 F.2d 1045, 1048 (5th Cir. 1990)).

Commissioner applies a five-step sequential process to determine disability

status. Id. The claimant bears the burden of proof at the first four steps to establish

that a disability exists. Farr v. Astrue, No. G-10-205, 2012 WL 6020061, at *2 (S.D.

Tex. Nov. 30, 2012). The burden shifts to Commissioner at step five to show that

the claimant can perform other work. Id. The burden then shifts back to the claimant

to rebut this finding. Id. If at any step in the process Commissioner determines that

the claimant is or is not disabled, the evaluation ends. Id.

IV. COMMISSIONER IS ENTITLED TO SUMMARY JUDGMENT.

Plaintiff raises two issues. First, Plaintiff argues that the ALJ erred in not

evaluating Plaintiff’s wife’s written testimony. ECF No. 10 at 4. Second, Plaintiff

argues that the ALJ “erred in not distinguishing [] Plaintiff’s ability to understand,

remember, and carry out simple instructions from the ability to sustain

concentration, persistence, and pace.” Id. at 7. Commissioner counters that first,

“[r]emand is not warranted for the ALJ to discuss the testimony of the third-party

witness” because the ALJ fulfilled her obligation to make affirmative findings

regarding Plaintiff’s subjective complaints. ECF No. 11-1 at 2, 3. Commissioner also

responds to Plaintiff’s second issue, arguing that “[t]he ALJ’s mental RFC finding

accommodated all of Plaintiff’s work-related mental limitations.” Id. at 6.

The Court finds that the ALJ did not commit harmful error when she did not

expressly evaluate Plaintiff’s wife’s written statement about the severity of

Plaintiff’s symptoms, and that the ALJ appropriately accounted for Plaintiff’s mental

limitations in assessing her RFC.

A. The ALJ’s Failure To Expressly Evaluate Plaintiff’s Wife’s

Statement Was Not Harmful Error.

Plaintiff contends that there is no evidence that the ALJ evaluated her wife’s

statement, even though SSR 19-3p states that ALJs will consider “non-medical

sources such as family and friends” in determining the intensity, persistence, and

limiting effects of a claimant’s symptoms. ECF No. 10 at 5–6. Plaintiff asserts that

this is harmful error because her wife “provided compelling written testimony about

the intensity, persistence, and limiting effects of [Plaintiff’s] symptoms,” which if

persuasive, would have led to a disability finding. Id. at 6.

Commissioner responds that the ALJ “acknowledged Plaintiff’s subjective

complaints,” but the objective medical evidence and Plaintiff’s daily activities

contradicted her allegations of disabling limitations. ECF No. 11-1 at 4–5.

Commissioner argues that “[t]he written testimony of Plaintiff’s spouse was merely

duplicative of Plaintiff’s allegations, and like Plaintiff’s allegations, was neither

credible, nor consistent with, nor supported by the preponderance of the medical and

other evidence of record,” and therefore, the ALJ “implicitly rejected the duplicative

allegations by Plaintiff’s spouse,” and did not need to make a specific credibility

finding as to this statement. Id. at 5–6.

“[C]redibility determinations of the ALJ are entitled to significant deference

by the court so long as the determination is supported by substantial evidence.” Yeh

v. Saul, No. CV H-20-0562, 2021 WL 4895751, at *6 (S.D. Tex. June 21, 2021)

(citing Byrd v. Astrue, No. CIV.A.1:07-CV-0111-C, 2008 WL 4414581, at *14

(N.D. Tex. Sept. 30, 2008)). “The evaluation of evidence concerning subjective

symptoms is a task particularly within the province of the ALJ, since he or she has

the opportunity to observe the claimant.” Id.

“When determining the credibility of a claimant’s complaints, the ALJ must

engage in a two-step analysis: (1) the ALJ must consider whether there is an

underlying identifiable impairment that could reasonably produce the alleged

symptoms; (2) the ALJ evaluate the intensity and persistence of the claimant’s

symptoms to determine the extent to which they limit her ability to perform work-

related activities.” Id. at *6 (citing Moynihan v. Saul, No. 4:19-CV-1396, 2020 WL

5260783, at *4 (S.D. Tex. Aug. 6, 2020)). The ALJ must consider “both the objective

medical evidence and the claimant’s statements about the intensity of his or her

symptoms. The ALJ may also consider (1) the claimant’s daily activities; (2) the

location, duration, frequency and intensity of the pain or other symptoms; (3) factors

that precipitate and aggravate the symptoms, (4) the type, dosage, effectiveness and

side effects of medication; (5) any treatment, other than medication, for relief of pain

or other symptoms; (6) any measures the claimant uses to relieve the pain or other

symptoms; and (7) any other factors concerning the claimant’s functional limitations

and restrictions due to pain or other symptoms.” Id. (citing SSR 16-3p, 2016 WL

1119029 at *7).

Other sources may provide information from which we may draw

inferences and conclusions about an individual’s statements that would

be helpful to us in assessing the intensity, persistence, and limiting

effects of symptoms. Examples of such sources include . . . non-medical

sources such as family and friends. . . . The adjudicator will consider

any personal observations of the individual in terms of how consistent

those observations are with the individual’s statements about his or her

symptoms as well as with all of the evidence in the file.

Soc. Sec. Ruling 16-3p Titles II & XVI: Evaluation of Symptoms in Disability Claims,

SSR 16-3P (Oct. 25, 2017).

At the hearing, Plaintiff testified that she cannot work because she “can’t drive

because of [her] seizures,” can’t stand, squat, walk, lift, or sit because of her “leg

and [her] dizziness and [her] headaches,” and she “forget[s] things a lot.” R. 39–40.

Plaintiff testified that her seizures have worsened over the last few years—she has

“absence seizures that last like five days,” and “three to four grand mal seizures at

the end of it,” but will not remember any of it or who anyone is and acts differently.

R. 42–43, 45. During these episodes, she will have an absence seizure thirty times a

day, normally accompanied by a migraine, which makes her dizzy and her ears ring.

R. 43. When this happens, she lays in bed and cannot do anything and “ha[s] people

that babysit [her].” R. 43, 45, 46. Plaintiff testified that she struggles with multi-

tasking and focusing on and remembering instructions. R. 47. Plaintiff testified that

if she is not in an episode, she functions normally, but if she is, then she is completely

incapacitated. R. 48.

A couple of days after the hearing, Plaintiff’s wife provided a typed, unsworn

two-page statement, wherein she detailed her experience with Plaintiff’s seizure

disorder, migraines, and vertigo. R. 283–84 (4/6/2021 Plaintiff’s Wife’s Typed

Statement). She stated that Plaintiff’s seizures have become more frequent over time,

and during these seizures, Plaintiff “black[s] out or daydream[s]” for one to two

minutes. R. 283. She also stated that Plaintiff sometimes has seizure clusters that last

up to seven days, and during these episodes, Plaintiff cannot care for herself in any

way because she becomes child-like and confused, sometimes losing any memory

of the event. Id. Plaintiff’s wife also included a timeline of Plaintiff’s seizures

between April 2020 and April 2021. R. 284.

The ALJ stated that although she found Plaintiff’s medically determinable

impairments could reasonably be expected to cause the alleged symptoms, Plaintiff’s

statements concerning the intensity, persistence, and limiting effects of these

symptoms were not entirely consistent with the medical evidence and other evidence

in the record. R. 20. The ALJ noted that, in October 2019, Plaintiff “had a normal

mental status examination with no dysphasia or aphasia, and “through strict

medication compliance, [Plaintiff’s] seizures were well controlled,” with only a few

seizures while on a lower dose of her seizure medication. R. 21.6 The ALJ also stated

that Dr. Daniel Fox, a consultative examiner, observed in October 2020, that Plaintiff

“was often tangential, but was easily redirected,” “was able to follow a 3-stage

command,” and “did not appear confused and was oriented to person, place, and

time.” R. 22.7 Dr. Fox also observed that Plaintiff’s “concentration appeared

inadequate,” but she “was adequately involved in the intellectual and cognitive

6 See R. 72–100 (11/10/2020 Dr. Hanna’s Disability Determination); R. 1051–57 (10/23/2019

Dr. Omotola Hope’s Treatment Records).

7 See R. 1231–50 (10/23/2020–11/05/2020 Dr. Fox’s Consultative Examination Report).

assessment procedures,” and her fatigue may have lowered her scores. R. 23.8 The

ALJ further examined the opinions of the Reviewing State Agency physicians,

Dr. Michael O’Callaghan and Dr. Henry Hanna, finding that Plaintiff could

understand, remember, and carry out simple instructions, concentrate for extended

periods, and make simple decisions. R. 24.9

And finally, the ALJ found that Plaintiff’s routine undercut her testimony.

Plaintiff “watched television and played games on her cell phone,” “denied needing

assistance with managing her personal hygiene,” was comfortable using the oven,

the stove, and the microwave,” “could complete household chores that did not

require her to stand form long periods,” and “enjoyed watching movies, going to the

beach, spending time outdoors, and playing with the family’s two dogs.” R. 23. The

ALJ concluded:

The claimant’s allegations of the intensity and persistence of pain and

disabling symptoms were not consistent with medical record signs,

laboratory findings, or the medical record as a whole. As previously

noted, the examinations did not reflect any evidence of a functional

loss. The claimant’s allegations of experiencing disabling pain and

limitation, made under oath, were not corroborated in the overall

record. I considered, but granted little probative weight to the

claimant’s testimony. As discussed above, the paucity of evidence did

not support the claimant’s ultimate allegation of disabling pain and

limitation.

R. 24.

8 See R. 1231–50 (10/23/2020–11/05/2020 Dr. Fox’s Consultative Examination Report).

9 See R. 65–69 (1/13/2020 Dr. O’Callaghan’s Disability Determination); R. 96 (11/10/2020

Dr. Hanna’s Disability Determination).

Here, the record shows that the ALJ thoroughly investigated Plaintiff’s

subjective statements regarding the intensity, persistence, and limiting effects of her

symptoms and carefully explained why she found that the statements were not

entirely credible, i.e., because they were not consistent with the opinions and

observations within the objective medical record and Plaintiff’s own routines. The

ALJ did not err in evaluating and discounting Plaintiff’s subjective complaints and

statements.

Importantly, Plaintiff has failed to provide, and the Court is unaware of any

authority requiring an ALJ to expressly evaluate the credibility of every third-party

witness in their decision. Instead, authority provides otherwise. See Fennell v.

Comm’r of Soc. Sec., No. 3:16CV-261-DAS, 2017 WL 4393098, at *6 (N.D. Miss.

Oct. 3, 2017) (“The plaintiff’s husband provided a functional report on his wife in

which he confirmed plaintiff’s reports of limitations in her daily activities. The fact

that the ALJ did not mention this statement does not mean that the ALJ did not

consider it. In light of the ALJ’s well-supported finding regarding the plaintiff’s

credibility, the court is not convinced that an error, if any, for failing to discuss the

husband’s statement was prejudicial to the plaintiff.”); Lehman v. Apfel, No. 7-00-

CV-14-AH, 2001 WL 1335902, at *9 (N.D. Tex. Oct. 23, 2001) (“Lehman also

contends that the ALJ erred in failing to make specific findings with respect to the

credibility of his wife’s testimony at the hearing. Mrs. Lehman’s testimony did not

present any separate and independent evidence in support of his claimed physical

impairments. Rather, her testimony merely related her observations of the physical

limitations which Plaintiff himself described in his own testimony. Specific

credibility findings on every proffered item of evidence is not required.”); Moore v.

Sullivan, 919 F.2d 901, 905 (5th Cir. 1990) (ALJ did not err in failing to evaluate

the credibility of a wife whose testimony “merely related to her observations of the

physical limitations” claimant alleged).

Even so, the Court finds that there is nothing within her wife’s statement that

Plaintiff had not already provided herself and the ALJ subsequently evaluated.

Because of the duplicative nature of this evidence, consideration of Plaintiff’s wife’s

statement would not have altered the ALJ’s decision as Plaintiff suggests. See

Fennell, 2017 WL 4393098, at *6; Lehman, 2001 WL 1335902, at *9.

B. The ALJ Properly Assessed Plaintiff’s RFC.

Plaintiff argues that although the ALJ found she had “moderate limitation in

concentrating, persisting, and maintaining pace,” the ALJ did not include a

restriction in her RFC assessment to address this limitation. ECF No. 10 at 7–8.

Plaintiff argues that by failing to include this limitation, the ALJ did not “address

her own finding that [Plaintiff] has a moderate limitation in concentration,

persistence, and pace.” Id. at 9. Plaintiff asserts that this is “harmful error[] because

the outcome of the decision is reasonably likely to be different with this restriction

added to the RFC.” Id. at 10.

Commissioner responds that “the ALJ’s mental limitations did address

Plaintiff’s moderate limitation regarding concentrating, persisting, and maintaining

pace.” ECF No. 11-1 at 7. Commissioner argues that “[b]ased on her evaluation of

the evidence and findings using the special technique” in SSR 96-8p, “the ALJ found

that Plaintiff had severe mental impairments, but that her impairments did not meet

or equal a listed impairment.” Id. The ALJ then assessed Plaintiff’s mental RFC by

appropriately considering the record’s medical opinion evidence, id. at 8–9, and the

prior administrative medical findings of the State agency psychological consultants,

id. at 10–11.

“By definition, a claimant’s RFC is the most the claimant can still do despite

the claimant’s impairments and any related symptoms.” Jones v. Saul, No. 7:19-CV-

00137-M-BP, 2020 WL 4756759, at *3 (N.D. Tex. July 21, 2020), report and

recommendation adopted, No. 7:19-CV-00137-M-BP, 2020 WL 4747531 (N.D.

Tex. Aug. 17, 2020) (citing 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1) (2020)).

“The RFC assessment must first identify the individual’s functional limitations or

restrictions and assess his or her work-related abilities on a function-by-function

basis, including the functions in paragraphs (b), (c), and (d) of 20 C.F.R. [§§]

404.1545 and 416.945.” Id. (quoting SSR 96–8p, 1996 WL 374184, at *1 (July 2,

1996)).

“In determining the claimant’s mental limitations, the ALJ considers evidence

of the claimant’s abilities to understand, remember, and carry out instructions, as

well as respond appropriately to supervision, co-workers, and work pressures in a

work setting.” Id. (citing 20 C.F.R. § 404.1545(c)). “The ALJ uses . . . the ‘paragraph

B criteria’ to rate the degree of the claimant’s mental limitations in four areas:

understanding, remembering, or applying information; interacting with others;

concentrating, persisting, or maintaining pace; and adapting or managing oneself.”

Id. (citing 20 C.F.R. § 404.1520a). “While the regulations require the ALJ to

evaluate [ ] the limitations imposed by Plaintiff’s mental impairments in certain areas

and direct the ALJ to proceed to the RFC determination if Plaintiff’s impairments

are found severe, the regulations do not specifically require the ALJ to find that the

limitations found in evaluating the mental impairment must be word-for-word

incorporated into either the RFC determination or the hypothetical question posed

to the VE.” Skiles v. Colvin, No. 4:12-CV-418-Y, 2013 WL 3486921, at *10 (N.D.

Tex. July 11, 2013) (citing Patterson v. Astrue, No. 1:08–CV–109–C, 2009 WL

3110205, at *5 (N.D. Tex. Sept. 29, 2009)).

Here, the ALJ adequately considered all of Plaintiff’s mental limitations in

assessing her RFC. At step two, the ALJ found that Plaintiff’s history of seizure

disorder, epilepsy, mild neurocognitive disorder, and anxiety disorder were severe

impairments. R. 15. Then, after discussing each of Plaintiff’s non-severe

impairments, the ALJ stated that she “considered all of [Plaintiff’s] medically

determinable impairments, including those that were not severe, when assessing

[Plaintiff’s] residual functional capacity.” R. 16.

The ALJ then continued to step three, where she found that Plaintiff did not

have an impairment or combination of impairments that equaled the severity of one

of the impairments enumerated in a Listing. R. 16. The ALJ specifically considered

Plaintiff’s mental health issues in the four “Paragraph B” categories, including

“concentrating, persisting, or maintaining pace.” Id. Specifically as to this category,

the ALJ noted that Plaintiff had a “moderate limitation” as her “concentration

appeared inadequate,” and “she appeared to stare off into space several times during

the clinical interview and was often tangential, but was easily redirected.” R. 18. The

ALJ also noted that Plaintiff “appeared to have mild difficulty attending to and

focusing on task”—“[s]he was unable to count forward by serial 7s and was unable

to spell the word WORLD forwards,” but “was able to count backward from 20 to

1.” R. 18, 12F. The ALJ concluded this section by stating that “[t]he residual

functional capacity addressed this limitation with unskilled work.” R. 18.

The ALJ also specifically qualified her step three finding, noting that:

The limitations identified in the “paragraph B” criteria are not a residual

functional capacity assessment, but are used to rate the severity of

mental impairments at steps 2 and 3 of the sequential evaluation

process. The mental residual functional capacity assessment used at

steps 4 and 5 of the sequential evaluation process requires a more

detailed assessment of the areas of mental functioning. The following

residual functional capacity assessment reflected the degree of

limitation I found in the “paragraph B” mental function analysis.

R. 19.

The ALJ then assessed Plaintiff’s RFC, specifically including the following

mental limitations: “[Plaintiff] [is] limited to performing simple, routine, repetitious

work one, two, or three step instructions. [Plaintiff] should avoid fast production

pace and strict production quotas.” R. 19.

In assessing Plaintiff’s RFC, the ALJ methodically considered the “relevant

testimony” and “relevant medical evidence.” R. 20–23. As noted above, the ALJ

found Plaintiff’s medically determinable impairments could cause the symptoms

alleged by Plaintiff, but based on the objective medical evidence, not to the degree

of intensity, persistence, and limiting effects that Plaintiff testified to. R. 20.

The ALJ then considered Plaintiff’s medical history, noting that as of October

2019, Plaintiff’s seizures were well-controlled so long as Plaintiff maintained strict

medication compliance. R. 21. The ALJ then addressed both of Dr. Fox’s

examinations. For the December 2019 examination, the ALJ found Dr. Fox’s

opinion that Plaintiff had the ability to understand, carry out, and remember one-two

step tasks in the absence of a seizure, but was unable to understand instructions for

complex tasks to be “somewhat persuasive as it was generally consistent with the

examination.” R. 21.10 The ALJ then assessed Dr. Fox’s opinion from his second

examination in October 2020. The ALJ found Dr. Fox’s opinion that Plaintiff was

“unable to sustain concentration and persist in work related activity at a reasonable

pace due to the variability in her seizures” was unsupported his examinations of

Plaintiff. R. 23.11 As evidence to the contrary, the ALJ remarked that, in these

examinations, Plaintiff “appeared to ‘stare off into space’ several times during the

clinical interview, but her attention was easily directed,” “was often tangential, but

was easily redirected,” “was able to follow a 3-stage command,” “did not appear

confused and was oriented to person, place, and time,” and although Plaintiff’s

“concentration appeared inadequate,” she was “adequately involved in the

intellectual and cognitive assessment procedures.” R. 23.12 The ALJ also noted that

she disagreed with Dr. Fox’s opinion because during the assessment, Plaintiff

remarked that “she watched television and played games on her cell phone,” “denied

needing assistance with managing her person hygiene” or getting dressed, “was

comfortable using the oven, the stove, and the microwave,” “could complete

household chores that did not require her to stand [for] long periods,” and “enjoyed

watching movies, going to the beach, spending time outdoors, and playing with the

10 R. 1058–69 (12/12/2019 Dr. Fox’s Consultative Examination Report).

11 R. 1231–50 (10/23/2020–11/05/2020 Dr. Fox’s Consultative Examination Report).

12 R. 1231–50 (10/23/2020–11/05/2020 Dr. Fox’s Consultative Examination Report).

family’s two dogs.” R. 23.13

The ALJ also relied upon the medical opinions of Dr. O’Callaghan and

Dr. Hanna, reviewing State Agency physicians, both of whom opined that Plaintiff

“could make simple decision[s], concentrate for extended periods, and interact with

others,” and “could respond to changes.” R. 24.14 The ALJ noted these opinions were

“persuasive as they were consistent with and supported by the mental status

examinations.” R. 24.15

Plaintiff’s argument both ignores the ALJ’s statement that she accommodated

for this limitation by only considering unskilled work and dismisses the ALJ’s

inclusion of other limitations in Plaintiff’s RFC, namely that of only performing

“simple, routine, repetitious work one, two, or three step instructions,” and

avoidance of “fast production pace and strict production quotas.” These added

restrictions clearly address Plaintiff’s moderate limitation in concentration,

persistence, and maintaining pace. See Linda Michelle M. v. Saul, No. 3:19-CV-

00328-B-BT, 2019 WL 7762203, at *6 (N.D. Tex. Dec. 27, 2019), report and

recommendation adopted, No. 3:19-CV-00328-B-BT, 2020 WL 470279 (N.D. Tex.

13 R. 1231–50 (10/23/2020–11/05/2020 Dr. Fox’s Consultative Examination Report).

14 R. 65–69 (1/13/2020 Dr. O’Callaghan’s Disability Determination); 72–100 (11/10/2020 Dr.

Hanna’s Disability Determination).

15 After determining Plaintiff’s RFC, the ALJ then found three unskilled jobs with

accommodations for Plaintiff’s RFC—that Plaintiff could perform—existed in significant

numbers in the national economy, and therefore, determined Plaintiff was not disabled. R. 25–26.

Jan. 28, 2020) (“the ALJ qualified Plaintiff’s ability to concentrate for two-hour

segments by limiting her to understanding, remembering, and carrying out only

simple instructions and making simple work-related decisions. ... The ALJ’s

limitation to simple instructions and simple work-related decisions take Plaintiff’s

moderate limitations into account.”); see also Dunson v. Berryhill, 2018 WL

1427107, at *6 (N. D. Tex. Mar. 22, 2018) (restricting claimant to “simple tasks”

adequately incorporated moderate limitation in concentration, persistence, and

pace); Jones, 2020 WL 4756759, at *3 (“A finding that a claimant can follow simple

instructions adequately incorporates a need for reminders”); Hall v. Astrue, No.

3:10-CV-2174-BK, 2011 WL 3510874, at *6 (N.D. Tex. Aug. 9, 2011) (“Plaintiff

also avers the ALJ failed to include his mental limitations, specifically his inability

to concentrate. However, the ALJ accounted for Plaintiff’s mental impairments in

his RFC by limiting Plaintiff to performing simple, repetitive tasks.”); Skiles, 2013

WL 3486921, at *10, n. 19 (citing cases for the proposition that limiting claimant to

performing work that required one or two simple tasks and maintaining attention

and/or concentration for two hour periods between breaks accommodated moderate

limitation in ability to maintain concentration, persistence, or pace).

The ALJ addressed Plaintiff’s moderate limitation in concentrating,

persisting, and maintaining pace by limiting her to only simple, repetitious, and

routine instructions, and avoidance of anything fast-paced or quota-driven.

Furthermore, this RFC assessment is consistent with the record. The medical record

indicates that with strict medication compliance, Plaintiff's seizures appear to be

controlled. Plaintiff's routine shows that has trouble concentrating, but can redirect,

and in her daily life, she takes care of her personal needs, prepares meals, and

completes household chores. The opinions of Dr. O’Callaghan and Dr. Hanna

directly align with the ALJ’s RFC determination.'* Accordingly, the Court finds that

the ALJ accounted for Plaintiff's moderate limitations in determining her mental

RFC, and that such determination is supported by substantial evidence.

V. CONCLUSION

Therefore, it is ORDERED that Plaintiff's motion for summary judgment,

ECF No. 9, is DENIED. It is further ORDERED that Commissioner’s motion for

summary judgment, ECF No. 11, is GRANTED. The decision of the Commissioner

is AFFIRMED. This case is DISMISSED WITH PREJUDICE.

Signed at Houston, Texas, on August 31, 2023. Qeerma

Dena Hanovice Palermo

United States Magistrate Judge

'6 Plaintiff also takes issue with the ALJ’s assessment of Dr. Fox’s two opinions, arguing that the

two opinions are identical and so to accept one as “somewhat persuasive,” but reject the other as

unpersuasive is nonsensical. ECF No. 10 at 9. The Court finds that the two opinions are not

identical. Regarding the first examination, the ALJ found Dr. Fox’s opinion that Plaintiff “was

unable to understand, carry out, remember instructions for complex tasks,” but could “remember

instructions for one-two step tasks” was somewhat persuasive. Regarding the second examination,

the ALJ found a different opinion of Dr. Fox, that Plaintiff “was unable to sustain concentration

and persist in work related activity at a reasonable pace due to the variability in her seizures and

her reported inability to stand for long periods,” was not persuasive because it “was not supported

by the examinations.” R. 22—23. As such, this argument lacks merit.

22