Acosta v. Astrue
Acosta v. Astrue
Opinion of the Court
MEMORANDUM OPINION AND ORDER
This is a civil action seeking judicial review of an administrative decision. Plaintiff, Carmen Acosta (“Acosta”), appeals from the decision of the Commissioner of the Social Security Administration (“Commissioner”) denying her claim for disability insurance benefits under Title II of the Social Security Act. Pursuant to 42 U.S.C. § 405(g), the District Court has jurisdiction to hear the appeal. Upon consent of the parties, the District Court, in accordance with 28 U.S.C. § 636(c) and Appendix C of the Local Court Rules for this district, transferred the case to this Court for further proceedings and entry of judgment. After careful consideration of the parties’ briefs, the Administrative Law Judge’s (“ALJ”) written decision, and the record evidence, the Court, for the reasons set forth below, finds that the final decision of the Commissioner should be AFFIRMED.
I. BACKGROUND
Acosta, who was born in Mexico in 1960, was forty-nine years old at the time of the ALJ’s decision. R. 32, 96, 218.
On March 14, 2008, Acosta filed an application for disability insurance benefits due to depression, hearing loss, high blood pressure (hypertension), and migraine, claiming a disability onset date of January 3, 2008. R. 123, 151. The state agency responsible for making initial disability determinations denied her application initially on June 12, 2008, and later upon reconsideration on August 18, 2008. Acosta requested a review of the denial by an ALJ. The ALJ held a de novo hearing on October 20, 2009. Represented by her attorney, Acosta appeared and testified at the hearing. She testified with the assistance of a Spanish interpreter. R. 31. The ALJ rendered a decision unfavorable to her, finding that from January 3, 2008, through November 19, 2009, the date of the ALJ’s decision, she was not disabled within the meaning of the Social Security Act and was not entitled to the requested benefits. R. 24. On September 22, 2010, the Social Security Appeals Council denied her request for review of the ALJ’s decision. R. 4.
Subsequently, Acosta filed a complaint with the District Court, seeking judicial review of the administrative decision pursuant to 42 U.S.C. § 405(g), along with a motion to proceed in forma pawperis. The motion was granted by this Court. Upon filing of an answer by the Commissioner, Acosta, on May 16, 2011, filed a brief in support of her request that the Court reverse the Commissioner’s decision and remand the case for an award of benefits or, in the alternative, additional administrative proceedings. Pl.’s Br. in Support of Claim 11 [hereinafter PL’s Br.], ECF No. 24. On June 15, the Commissioner responded with a brief in support of its decision to deny benefits. Br. in Support of Comm’r’s Decision 10 [hereinafter Comm’r’s Br.], ECF No. 25.
II. APPLICABLE LEGAL STANDARDS
A. Standard of Review
Where, as here, the Appeals Council has declined to review the ALJ’s decision, the ALJ’s decision constitutes the final decision of the Commissioner. Higginbotham v. Barnhart, 405 F.3d 332, 336 (5th Cir. 2005). Judicial review of the Commissioner’s decision to deny benefits is limited to two inquires: (1) whether the Commissioner used the proper legal standards to evaluate the evidence and (2) whether the decision is supported by substantial evidence. Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002); 42 U.S.C. § 405(g). “Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). “ ‘It is more than a mere scintilla and less than a preponderance.’ ” Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001) (quoting Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000)). “If the Commissioner’s findings are supported by substantial evidence, then the findings are conclusive and the Commissioner’s decision must be affirmed.” Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995) (per curiam) (citations omitted). If, on the other hand, the Commissioner’s findings are not supported by substantial evidence, or the Commissioner incorrectly applied the law, the reviewing court may, inter alia, reverse the Commissioner’s decision and remand the case for further proceedings. Murkeldove v. Astrue, 635 F.3d 784, 792 (5th Cir. 2011) (discussing a remand pursuant to sentence four of 42 U.S.C. § 405(g)).
B. The Standard for Entitlement to Social Security Benefits and Burden of Proof
An individual applying for benefits bears the initial burden of proving that he or she suffers from a disability, which is defined 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 12 months.” 42 U.S.C. § 423(d)(1)(A); Perez, 415 F.3d at 461 (citations omitted). “Substantial gainful activity is defined as work activity involving significant physical or mental abilities for pay or profit.” Newton, 209 F.3d at 452-53 (citing 20 C.F.R. § 404.1572(a)-(b)).
In evaluating a disability claim, the Commissioner is required to conduct a five-step sequential analysis to determine “(1) whether the claimant is currently engaged in substantial gainful activity (whether the claimant is working); (2) whether the claimant has a severe impairment; (3) whether the claimant’s impairment meets or equals the severity of an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1; (4) whether the impairment prevents the claimant from doing past relevant work (whether the claimant can return to his [or her] old job); and (5) whether the impairment prevents the claimant from doing any other work.” Perez, 415 F.3d at 461 (citations omitted). The claimant bears the burden of showing that she is disabled through the first four steps of the analysis; on the fifth, the Commissioner must show that there is other substantial work in the national economy that the claimant can perform. Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007). “ ‘Once the Commissioner makes this showing, the burden shifts back to the claimant to rebut this finding.’ ” Perez, 415 F.3d at 461 (quoting Newton, 209 F.3d at 453).
If, at any step, the Commissioner can-determine that the claimant is disabled or not disabled, that ends the analysis. Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987). If, however, the Commissioner cannot make such a finding, the analysis proceeds to the next step. Perez, 415 F.3d at 461. Before considering the fourth and fifth steps, the Commissioner must assess the claimant’s residual functional capacity (“RFC”), which is, in layman’s terms, her maximum work capability. Id. at 461-62; 20 C.F.R. §§ 404.1520(e), 404.1545(a). “The claimant’s RFC is used at both steps four and five of the sequential analysis: at the fourth step to determine if the claimant can still do his [or her] past relevant
III. THE ALJ’S FINDINGS AND CONCLUSIONS OF LAW AND PLAINTIFF’S CLAIMS ON APPEAL
The ALJ found, as a threshold matter, that Acosta’s last date insured was December 31, 2011. R. 20. At Step One of the five-step sequential process, the ALJ found that Acosta had not engaged in substantial gainful activity since January 3, 2008, the alleged disability onset date. Id. At Step Two, he determined that Acosta had severe impairments of hearing loss, hypertension, and migraine headaches. Id. However, he found that Acosta’s mental impairment of depressive disorder was not severe. R. 21. He then went on to find that Acosta did not have an impairment or combination of impairments that met or equaled any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, for which she would be found presumptively disabled. R. 22. The ALJ next determined that Acosta had the RFC to perform a full range of “medium work.”
On appeal here, Acosta challenges the ALJ’s ruling on two principal grounds— each with two specific claims. By her first ground, she complains that the ALJ erred in finding that her mental impairment was not severe. Specifically, she claims that the ALJ committed a legal error by applying an improper severity standard. Pl.’s Br. 4. She further claims that substantial evidence does not support the ALJ’s finding that her mental impairment was not severe. Id. By her second ground, she asserts that the ALJ’s RFC finding that she was capable of performing a full range of medium work was erroneous. In particular, she claims that the ALJ erred by failing to include in his RFC finding all limitations supported by evidence. Id. at 11. Finally, she claims that in assessing her RFC, the ALJ committed a legal error by not making a specific finding regarding her ability to sustain employment. Id. at 10.
The Court .will address each of Acosta’s claims in turn.
IV. DISCUSSION
A. The ALJ’s Finding That Plaintiffs Mental Impairment Was Not Severe
1. Plaintiff’s Claim That the ALJ Committed a Legal Error by Applying an Improper Severity Standard
Acosta claims that the ALJ used an improper severity standard to find that her mental impairment was not severe. PL’s Br. S — Jp. Under the regulations, an impairment is not severe “if it does not significantly limit your physical or mental ability to do. basic work activities.” 20 C.F.R. § 404.1521(a); see also 20 C.F.R. § 404.1520(c).
Here, in his written decision, the ALJ did not cite to Stone or another court opinion of the same effect, recite ipsissimis verbis the construction the Fifth Circuit gives to § 404.1520(c), or expressly state that he used that construction. Instead, under the “Applicable Law” section of his opinion, the ALJ stated:
An impairment or combination of impairments is “severe” within the meaning of the regulations if it significantly limits an individual’s ability to perform basic work activities. An impairment or combination of impairments is “not severe” when medical and other evidence establish only a slight abnormality or a combination of slight abnormalities that would have no more than a minimal effect on an individual’s ability to work.
R. 19 (emphasis added) (citing 20 C.F.R. § 404.1521(a); Social Security Regulation (“SSR”) 85-28, 1985 WL 56856, at *3 (S.S.A. 1985); and SSR 96-3p, 1996 WL 374181, at *1 (S.S.A. 1996)). The above-quoted text appears, with some minor linguistic variations, in SSR 96-3p. Only the last sentence of the above-quoted text appears in SSR 85-28, again with some minor semantic variations. (These regulations will be discussed fully infra.) Moreover, in his analysis, the ALJ applied 20 C.F.R. § 404.1520a(d)(l) to conclude that Acosta’s mental impairment was not severe. R. 21-22. That regulation describes a step in the Social Security Administration’s (“Administration” or “SSA”) “special technique,” called the psychiatric review technique (“PRT”), that ALJs are bound to follow in determining a mental impairment’s severi
In support of her claim, Acosta points out that in concluding that her depressive disorder was not severe, the ALJ found that her impairment “does not cause more than minimal limitation in the claimant’s ability to perform basic [mental] work activities” — a finding the ALJ made pursuant to § 404.1520a(d)(l). Pl.’s Br. at 3 (emphasis in original) (quoting R. 21). Thus, under the standard used by the ALJ, she appears to assert, an impairment can cause some — albeit not more than minimal — -limitation in a claimant’s ability to work and yet be considered not severe. Id. 3-4. Consequently, the ALJ’s standard, goes her argument, is contrary to the Fifth Circuit’s slight abnormality standard, which, she insists, “ ‘provides for no allowance for a minimal interference on a claimant’s ability to work.’ ” Id. at 4 (emphasis added) (quoting Scroggins v. Astrue 598 F.Supp.2d 800, 805 (N.D.Tex. 2009)). Her argument thus raises the issue whether the minimal effect standard— i.e., the standard espoused in SSR 85-28, SSR 96-3p, and 20 C.F.R. § 404.1520a(d)(1), and used by the ALJ here — is inconsistent with the Fifth Circuit’s slight abnormality standard.
Shortly after Congress enacted the Social Security Amendments Act of 1954, which defined “disability” in substantially the same language as appears in today’s 42 U.S.C. § 423(d)(1)(A),
The significant limitation regulations of 1978 were promulgated to achieve greater program efficiency “by limiting the number of cases in which it would be necessary to follow the vocational evaluation sequence” in full. 45 Fed.Reg. 55574 (Aug. 20, 1980). In a 1978 notice of proposed rules, the Administration explained, “[t]here are ... various levels of impairment severity.” 43 Fed.Reg. 9296 (Mar. 7, 1978). At the upper end of the impairment severity are those impairments that meet the duration requirements and are listed in the appendix to the regulations (or are medically the equivalent thereof) for which medical considerations alone can justify a finding of disabled. Id. “Conversely, there is a point in the range of impairment severity below which the effects of the impairment(s) have such a minimal effect on the individual that they would not be expected to interfere with his or her ability to work, irrespective of his or her age, education, and work experience.” Id. By identifying at an early stage of the sequential evaluation process those claimants whose medical impairments are of severity at these two extremes, the Administration sought to streamline its decisional process.
The Administration, however, made it abundantly clear that the new terminology in the significant limitation regulations was intended solely to clarify, not change, the prior definition of impairment severity as embodied in the 1968 regulations. 43 Fed. Reg. 55357-58 (Nov. 28, 1978); see also id. at 55358 (“[Tjhere is no intention to alter the levels of severity for a finding of disabled or not disabled on the basis of medical considerations alone.”). Yet, it soon became evident that through literal application of the regulations, the agency decisionmakers were systematically denying benefits to claimants who would otherwise satisfy the statutory criteria for disability. See Estran, 745 F.2d at 341; Martin, 748 F.2d at 1034 n. 2; Stone, 752 F.2d at 1103; Chico v. Schweiker, 710 F.2d 947, 954, 955 & n. 10 (2d Cir. 1983); see also Bowen v. Yuckert, 482 U.S. 137, 157, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987) (O’Connor, J., concurring) (noting that empirical “evidence suggests that step two [of the sequential evaluation process] has been applied systematically in a manner inconsistent with the statute”). Consequently, the courts, including the Fifth Circuit, were confronted with a series of cases in which a decisive administrative determination was made against disability at step two on the grounds of non-severity. See Yuckert, 482 U.S. at 156-57, 107 S.Ct. 2287 (O’Connor, J., concurring) (“The frustration expressed by these courts in dealing with the [Commissioner’s] application of step two in particular cases is substantial, and no doubt in part accounts for the Court of Appeals’ decision in this case to simply enjoin the regulation’s further use.”).
Against this backdrop, the Fifth Circuit decided the quartet of cases — Estran, Davis, Martin, and Stone — and adopted the slight abnormality standard. In Estran, at issue was whether the ALJ properly applied 20 C.F.R. § 416.921(a) (1982) (the Supplemental Security Income Act’s
Taking a nudge from the Estran-Davis-Martin-Stone cases, the Administration responded by issuing multiple rulings. Shortly after Stone was decided, it issued SSR 85-28 (the ALJ cited this ruling in support of the standard he used here), amending its policy for determining non-severity. That ruling provides, in relevant part:
An- impairment or combination of impairments is found “not severe” and a finding of “not disabled” is made at [the second] step when medical evidence establishes only a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on an individual’s ability to work even if the individual’s age, education, or work experience were specifically considered (i.e., the person’s impairments) has no more than a minimal effect on his or her physical or mental abilityfies) to perform basic work activities).
SSR 85-28, 1985 WL 56856, at *3 (S.S.A. 1985). The Administration explained, “[this ruling] is being issued to clarify that SSA’s policy is consistent with various court decisions,” including Estran and Stone (these cases were expressly referenced in the ruling). Id. at *2. The Administration also rescinded a prior ruling, SSR 82-55, which, like SSR 85-28, was entitled “Title II and XVI: Medical Impairments That Are Not Severe,” but unlike SSR 82-55, had expressed the threshold of impairment severity in language that closely tracked the text of the significant limitation regulations: “For an impairment to be considered severe, it must significantly limit the individual’s physical or mental capacity to perform one or more basic work-related functions.... An impairment that does not significantly limit the capacity to perform work-related functions, as they are required in most jobs, is not severe.” SSR 82-55, 1982 WL 31375, at *2 (S.S.A. 1982); see also Reyes v. Sullivan, 915 F.2d 151, 154 n. 1 (5th Cir. 1990) (per curiam) (stating SSR 82-55 was rescinded after Stone was decided). More
At step 2 of the sequential evaluation process, an impairment or combination of impairments is considered “severe” if it significantly limits an individual’s physical or mental abilities to do basic work activities; an impairment(s) that is “not severe” must be a slight abnormality (or a combination of slight abnormalities) that has no more than a minimal effect on the ability to do basic work activities.
SSR 96-3p, 1996 WL 374181, at *1 (S.S.A. 1996) (citing SSR 85-28). As noted supra, the ALJ also cited to this ruling in support of the standard he used.
To date, however, the Administration has not amended the “significantly limit” language of the regulations whose constructions were at issue in Estran, Davis, Martin, and Stone. Nevertheless, in 2000 the Administration amended one of its PRT regulations that had defined the severity threshold for mental impairments in much the same language as do the significant limitation regulations. That regulation was 20 C.F.R. § 404.1520a(c)(l) (1986) — the predecessor of 20 C.F.R. § 404.1520a(d)(l) (2009), pursuant to which the ALJ analyzed the severity of Acosta’s depressive disorder. Introduced shortly after Stone was decided, § 404.1520a(c)(l) precluded a finding that a claimant’s mental impairment is not severe where the impairment caused “significant limitation of [her] mental ability to do basic work activities.”
These post-Stone responses by the Administration evince its efforts to bring its policies on non-severity determination in line with the slight abnormality standard pronounced by the Fifth Circuit. Critically, they inform that the Administration
Presently, there is a split among our sister courts that have had the occasion to review this precise issue. Some courts have held, often without elaboration, that a standard using the “minimal effect” language as used in SSR' 85-28 and SSR 96-3p is consistent with the • Fifth Circuit’s non-severity standard.
Another illustrative case from this later line of authority is Padalecki v. Astrue, 688 F.Supp.2d 576 (W.D.Tex. 2010), where
Scroggins, Padalecki, and other opinions
Moreover, in a number of unpublished opinions, our appellate court has approved
Taken together, Martin, Loza, and these unpublished cases reveal that since the time it adopted the slight abnormality standard, our appellate court has all along viewed that standard as providing an allowance for a minimal effect on ability to work without also rendering the impairment severe. Accordingly, this Court declines Acosta’s invitation to follow the Scroggins line of cases. Moreover, the Court cannot escape the conclusion that, despite minor semantic differences, the standard used by the ALJ, and — by extension the standard promulgated in SSR 85-28 and SSR 96-3p and codified in 20 C.F.R. § 404.1520a(d)(l) to the extent they define a non-severe impairment as having no more than a minimal effect or limitation on ability to work — are consistent with and conform to the slight abnormality standard adopted by the Fifth Circuit. The Court therefore holds that the ALJ used the proper legal standard in finding that Acos
2. Plaintiff’s Claim That Substantial Evidence Does Not Support the ALJ’s Finding That Her Mental Impairment Was Not Severe
Acosta argues broadly (and vaguely) that the ALJ’s determination that Acosta’s mental impairment of depressive disorder was not severe lacks support by substantial evidence. Specifically, however, she takes issue only with the ALJ’s subsidiary findings that he made en route to his ultimate non-severity determination.
The first appearance of depression in the record is in a psychiatric evaluation report from El Paso Mental Health and Mental Retardation (“MHMR”), where Acosta sporadically sought treatment for depression between December 2004 and May 2006. Psychiatrist Nicolas Baida-Fragoso, M.D., of MHMR conducted that evaluation. He diagnosed her with Major
In September 2006, Acosta began to see neurologist Albert C. Cuetter, M.D., at Texas Tech University Health and Science Center (TTUHSC). The record contains six treatment notes by Dr. Cuetter, the last of which is dated June 16, 2009. Although at TTUHSC, Acosta was being “followed because of migraine,” R. 444, Dr. Cuetter’s notes contain some information relating to her depression. He diagnosed her with Major Depressive Disorder. R. 301. So far as appears, she was prescribed antidepressants primarily to treat her migraine headaches.
The record also contains psychological examination reports by two non-treating physicians. Psychologist James W. Schutte, Ph.D., conducted a consultative psychological examination of Acosta on May 27, 2008, at the behest of the state disability agency. Dr. Schutte reported the results of DSM-IV-TR diagnoses as follows:
Axis I: 296.22 Major Depressive Disorder
Axis II: 799.9 Diagnosis Deferred on This Axis
Axis III: Reported hypothyroidism, hearing loss, migraines, hypertension
Axis IV: None reported
Axis V: Current GAF: 60
R. 381. He also administered the Wechsler Adult Intelligence Scale Ill’s (WAISIII) Digit Span subtest — which measures an examinee’s working memory, attention, and concentration.
Psychologist Javier Carrillo, Ph.D., conducted the other psychological examination on July 24, 2008, though at the request not of the state disability agency, but of the Texas Department of Assistive and Rehabilitation Services, where Acosta sought assistance to find employment. Dr. Carrillo administered a Wide Range Achievement Test-4, on which Acosta scored in the low to lower extreme ranges. R. 438. Apparently, however, the test was administered in English
Axis I: 311 Depressive Disorder Not Otherwise Specified
Axis II: V62.89 Borderline Intellectual Functioning
Axis III: 799.9 Deferred to medical records
Axis IV: Vocational uncertainty, problems with the social environment
Axis V: Current GAF: 80
R. 440.
The ALJ accepted these diagnoses by these medical experts and determined that Acosta had a medically determinable mental impairment of depressive disorder. The ALJ next reviewed the record evidence under the agency’s “special technique” for determining the severity of mental impairments. Pursuant to 20 C.F.R. § 404.1520a(d)(l)
“Social functioning refers to [a claimant’s] capacity to interact independently,
The Court’s review of the record reveals that there is substantial evidence supporting the ALJ’s finding of mild limitation in social functioning. In a form entitled “Function Report — Adult,” and submitted by Acosta at the administrative level, she denied having difficulty getting along with family, friends, neighbors, or others, and denied having problems in getting along with authority figures, such as bosses, police, landlords, or teachers. R. 161-62. During her psychological examination by Dr. Schutte, she also “denied having any trouble getting along with others at work.” R. 379. Dr. Fragoso consistently described her as cooperative and polite. R. 193, 196, 199, 202, 277. Dr. Schutte also described her as courteous and cooperative. R. 380, 436. Specifically, Dr. Carrillo noted: “Rapport was easily established since she was both courteous and cooperafive.” R. 436. Significantly, Dr. Carrillo opined that Acosta exhibited “adequate social skills” and that “[t]hese skills will be an asset as she pursues employment and possibly further training.” R. 440.
Acosta, however, directs the Court’s attention to a 2006 treatment note by Dr. Fragoso and contends that she is “irritable and cannot tolerate criticism,” and that she has been fired from jobs in the past due to her inability to tolerate criticism. PL’s Br. 5. Read closely, the note reveals that Acosta’s “irritability” was a side effect of Depakote,
“Concentration, persistence, or pace,” on the other hand, refers to “the ability to sustain focused attention sufficiently long to permit the timely completion of tasks commonly found in work settings.” 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.00C(3). Further, “[limitations in concentration, persistence, or pace are best observed in work settings, but may also be reflected by limitations in other settings.” Id. “[Mjajor limitations in this area can often be assessed through clinical examination or psychological testing”; “[i]n psychological tests of intelligence or memory, concentration is assessed through tasks requiring short-term memory or through tasks that must be completed within established time limits.” 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.00C(3).
Dr. Fragoso consistently assessed Acosta’s cognition as “grossly intact” and judgment as “good.” R. 276, 202,199,196,193. During her 2004 visit to MHMR, Dr. Fragoso assessed her as having “fair” recent, remote, and immediate memory, but short attention span. R. 276. Upon Acosta’s return to MHMR in 2006, Dr. Fragoso noted decreased attention and concentration, and rated her concentration at 2 on a scale of 0-3. R. 201. 202. On her subsequent visits, however, he rated her concentration at 1. R. 198, 195, 192. Dr. Cuetter most often reported her memory as “normal”/“intact”; only on one occasion he noted decreased short-term memory. Compare R. 442, 292, 295, 300, with R. 445. He also assessed her attention more often as “normal”/“intact” than as “decreased.” Compare R. 442, 292, 295, with R. 445, 413. Dr. Schutte opined that Acosta’s cognitive functions seemed grossly intact, but her ability to reason seemed mildly impaired due to depression. R. 380-81. As noted, he administered a WAIS-III digit span test, but questioned the accuracy of her performance on that test. He, however, remarked that Acosta’s attention and concentration appeared within normal limits during the evaluation, and her long-term memory did not seem grossly impaired. R. 380. Dr. Carrillo did not make any specific statement about her concentration and attention.
On appeal here, Acosta points out that Dr. Carrillo assessed her with borderline intellectual functioning. PL’s Br. 6 (citing R. 440). Dr. Carrillo, however, did not suggest that her borderline intellectual functioning limited her ability to work. Although borderline intellectual functioning may suggest some, even moderate, difficulty in concentration, persistence, or pace, see, e.g., Fisher v. Barnhart, 181 Fed.Appx. 359, 364 (4th Cir. 2006) (per curiam) (unpublished) (noting approvingly that the ALJ’s finding of moderate difficulty in the area of concentration, persistence, or pace accounted for the claimant’s borderline intellectual functioning), it does not, without more, require a finding of more than a mild limitation in that functional area. See, e.g., Harris v. Comm’r of Soc. Sec., 330 Fed.Appx. 813, 815-16 (11th Cir. 2009) (per curiam) (unpublished) (affirming the ALJ’s decision to deny disability benefits where the ALJ found that the claimant, who was diagnosed with borderline intellectual functioning, had mild limitations in the area of concentration, persistence, or pace).
Acosta calls the Court’s attention to a few pieces of evidence to buttress her argument that the ALJ erred by not finding at least moderate limitations in the area of
The Court is of the opinion that although snippets of the doctors’ notes present some conflicting evidence, the medical records, read holistically and longitudinally, provide substantial evidence in support of the ALJ’s finding that Acosta had no more than mild limitations in the functional area of concentration, persistence, or pace. See Zimmerman v. Astrue, 288 Fed.Appx. 931, 937 (5th Cir. 2008) (per curiam ) (unpublished) (noting that the record contained some conflicting evidence, but finding that the ALJ’s conclusion about the claimant’s mental impairment was supported by substantial evidence); Menchaca v. Barnhart, 179 Fed.Appx. 215, 216 (5th Cir. 2006) (per curiam) (unpublished) (“[I]f the Commissioner’s conclusion is supported by substantial evidence, we must affirm it, even in the face of conflicting evidence.”).
Moreover, Mark Boulos, M.D., a non-examining, state agency psychological consultant, who reviewed the record evidence, including the medical records, and completed a Psychiatric Review Technique form (“PRTF”), opined, like the ALJ, that Acosta had mild limitations in the areas of activities of daily living, social functioning, and concentration, persistence, or pace, and “no” episodes of decompensation of extended duration. R. 395. He determined that Acosta’s depressive disorder (more precisely, her affective disorder) was not severe. R. 385. Another state agency psychological consultant, Henry Henna, Ph.D., who reviewed Dr. Boulos’s PRTF, concurred with his opinions. R. 406. These opinions provide substantial evidence in support of the ALJ’s findings, including those challenged by Acosta here. See Villa v. Sullivan, 895 F.2d 1019, 1024 (5th Cir. 1990) (stating a non-examining physician’s ■ assessments provide substantial evidence upon which the ALJ may properly rely where these assessments are based upon medical evidence and are not contradicted by those of an examining physician).
As a final matter, under § 404.1520a(d)(l), the ALJ was required to make a broader inquiry: whether the evidence otherwise indicated that “there is more than a minimal limitation in [her] ability to do basic work activities.” 20 C.F.R. § 404.1520a(d)(l). To that end, the ALJ noted that Dr. Carrillo assessed a GAF score of 80, which indicates that Acosta’s symptoms “are transient and ex-pectable reactions to psycho-social stressors” and that she has “no more than slight impairment in social, occupational, or school functioning.” Am. Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders 34 (Text Revision 4th ed. 2000); Kohler v. Astrue, 546 F.3d 260, 262 n. 1 (2d Cir. 2008). Dr. Schutte assessed a GAF score of 60, which is one point away from the next range on the scale which indicates that an individual has “some mild symptoms ... or some difficulty in social, occupational, or school functioning,” but that she is “generally functioning pretty well.” Diagnostic & Statistical Manual of Mental Disorders, supra, 34. Significantly, and as the ALJ noted, Dr. Carrillo opined: “Ms. Acosta’s symptoms of depression are not so severe so as to render her incapable of working if she desires to work. In my opinion if she were to find employment that she enjoyed this would help in decreasing her symptoms of depression.” R. 440. From this opinion, in light of the evidence discussed above and Acosta’s recent GAF scores within the alleged disability period, the ALJ could reasonably conclude that Acosta’s “mental impairment of depressive disorder does not cause more than minimal limitations in [her] ability to perform basic mental work activities and therefore is not severe.” R. 21. The ALJ, therefore, possessed substantial evidence to form the basis of his ultimate finding that Acosta’s depression was not severe.
Accordingly, Acosta has failed to establish that the ALJ committed a legal error at Step Two of the sequential evaluation process or that the ALJ’s assessment of her depressive disorder is unsupported by substantial evidence.
B. The ALJ’s Finding That Plaintiff Had the RFC to Perform a Full Range of Medium Work
I. Plaintiff’s Claim That the ALJ Erred by Failing to Include in His RFC Finding All Limitations Supported by Evidence
The ALJ determined that Acosta had “the residual functional capacity to perform the full range of medium work as defined in 20 C.F.R. § 404.1567(c).” R. 22. The ALJ concluded that consistent with that RFC, Acosta was capable of performing her past relevant work as a machine operator. R. 23. Acosta avers that the RFC finding is unsupported by substantial evidence because it fails to expressly include nonexertional
RFC is an assessment of the most an individual can do despite the limitations that stem from her medically determinable impairments, including those that are not severe. SSR 96-8p, 1996 WL 374184, at *2, *5 (S.S.A. 1996); 20 C.F.R. § 404.1545(e). In making that assessment, an ALJ must consider all functional limitations — exertional and nonexertional. SSR 96-8p, 1996 WL 374184, at *5. The limitations arising from the medication side effects are a factor to be considered. Id.; SSR 96-7P, 1996 WL 374186, at *3 (S.S.A. 1996); 20 C.F.R. § 404.1529(c)(3)(iv); see also Crowley v. Apfel, 197 F.3d 194, 199 (5th Cir. 1999) (holding the ALJ’s failure to consider the adverse side effects of medications was an error). Further, the RFC assessment must include a narrative discussion describing how the evidence supports each conclusion and “a resolution of any inconsistencies in the evidence.” Myers v. Apfel, 238 F.3d 617, 620 (5th Cir. 2001) (per curiam ) (citation omitted); SSR 96-8p, 1996 WL 374184, at *7. At bottom, however, RFC determinations are “inherently intertwined with matters of credibility,” Outlaw v. Astrue, 412 Fed.Appx. 894, 897 (7th Cir. 2011) (unpublished), and the ALJ’s credibility determinations are generally entitled to great deference. Newton v. Apfel, 209 F.3d 448, 459 (5th Cir. 2000).
Turning to her specific arguments, Acosta contends that the ALJ erred by not incorporating in his RFC formulation her “mild” limitations in the functional areas of activities of daily living, social functioning, and concentration, persistence, or pace. PL’s Br. 8. The ALJ made those findings in his Step Two analysis, where he concluded that Acosta’s depressive disorder was not severe. The ALJ, however, considered these findings in assessing her RFC, as he stated, “the following residual functional capacity assessment reflects the degree of limitation the undersigned has found in the ‘paragraph B’
At the administrative level, Acosta asserted that she was unable to work due
Before the ALJ, Acosta testified that due to her migraine, she was unable to perform her old job as a machine operator. R. 36. The treatment notes from her neurologist indicate that Acosta has been suffering from migraine since she was thirty-five years of age. R. 299. She was diagnosed with migraine with no aura or prodrome. R. 299. Her migraine causes hemicranial pulsatile pains. R. 299, 444. She complained of having migraine headaches three times per week in late 2006, but every day in early 2007. R. 294, 299. These headaches are precipitated by stress and certain foods. R. 294. Her neurologist also noted that her headaches were premenstrual. R. 291, 299. Her migraine also produces associated symptoms of nausea and vomiting. R. 299-300. Acosta reported that her nausea is relieved by taking Excedrin every day. R. 294. As for headaches, her doctors prescribed her Amitriptyline (i.e. Elavil) as a prophylactic medicine. R. 301, 446. Although on occasions her doctors altered her medications and prescribed her Sertraline (i.e., Zoloft) in lieu of Amitriptyline, R. 293, 443, the record reveals that she has most consistently taken Amitriptyline for many years, since as early as 1999.
Acosta also complained that the side effects from her medications were disabling
Quite the contrary, the ALJ noted that despite her complaints of disabling migraine headaches and medication side effects, Acosta has worked in temporary jobs and now works full time, thirty to forty hours per week. R. 21, 23. An ALJ must assess residual functional capacity based on the relevant evidence in the record, which includes “reports of daily activities” and “evidence from attempts to work.” SSR 96-8p, 1996 WL 374184, at *5; Williams-Overstreet v. Astrue, 364 Fed.Appx. 271, 276-77 (7th Cir. 2010) (unpublished). Moreover, continued employment during the alleged disability period supports a finding of non-disability. Vaughan v. Shalala, 58 F.3d 129, 131 (5th Cir. 1995) (per curiam). Acosta, however, counters that her present job, which she began in March 2009 with the help from Texas Department of Assistive and Rehabilitation Services, R. 34, 177, is a “sheltered” work activity, because, as she testified, “if I’m not feeling well, they allow me to go home,” R. 36, and consequently, should not be considered to show her ability to perform substantial gainful activity. Pl.’s Br. 9-10 (citing 20 C.F.R. § 404.1573(c)). Other evidence in the record, however, shows that she held at least one other job during the period of purported disability. Specifically, as noted by the ALJ, she related to Dr. Carrillo that she worked for Allegiance Staffing (a temporary work agency) from April 2008 to June 2008. R. 437. Further, during the consultative examination conducted by Dr. Schutte on May 27, 2008, she reported that she was “working for the past three weeks for a temp service, and indicated that her job was going ‘OK.’ ” R. 379. Acosta does not claim that this job too was a sheltered job, nor did she mention this job at the administrative level.
Moreover, her job history reflects that prior to her alleged disability onset date, she held multiple jobs including her past relevant work as a machine operator at Thermotech,
In summary, the ALJ considered her subjective complaints about “the intensity, persistence, and limiting effects” of her depressive disorder, hearing loss, hypertension, migraine, and medication side effects, but found that they “are not credible to the extent they are inconsistent with the above residual functional capacity assessment.” R. 23. Put another way, the ALJ determined that they did not restrict her ability to work as much as she claimed and that she could perform the full range of medium work. Because the Court finds that the ALJ’s credibility determination is supported by substantial evidence, it will not disturb those findings. See Villa v. Sullivan, 895 F.2d 1019, 1024 (5th Cir. 1990) (“[A] factfinder’s evaluation of the credibility of subjective complaints is entitled to judicial deference if supported by substantial record evidence.”). Accordingly, the Court holds that the ALJ did not err by failing to incorporate additional limitations, as argued by Acosta, into his RFC formulation. The ALJ needed only to include those limitations that he accepted as credible and that were supported by evidence. See Masterson v. Barnhart, 309 F.3d 267, 273 (5th Cir. 2002). See also Outlaw v. Astrue, 412 Fed.Appx. 894, 898 (7th Cir. 2011) (unpublished) (“The ALJ needed only to include limitations in his RFC determination that were supported by the medical evidence and that the ALJ found to be credible.” (citing Simila v. Astrue, 573 F.3d 503, 520-21 (7th Cir. 2009))); Elletson v. Astrue, 319 Fed.Appx. 621, 623 (9th Cir. 2009) (unpublished) (“In crafting an RFC determination, an ALJ ‘must only include those limitations supported by substantial evidence.’ ” (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2006))).
2. Plaintiff’s Claim That the ALJ Committed a Legal Error by Not Making a Specific Finding Regarding Her Ability to Sustain Employment
As her final issue on this appeal, Acosta maintains that she cannot sustain employment. Pl.’s Br. 10. Pointing out that the ALJ acknowledged her allegations of “chronic daily headache with periods of no headaches whatsoever,” PL’s Br. 10 (citing R. 20), Acosta explains that her impairments (presumably migraine) are of waxing and waning nature. Id. Therefore, the ALJ, she complains, erred by failing to make a specific finding regarding her ability to sustain employment. For support, Acosta relies on Singletary v. Bowen, 798 F.2d 818 (5th Cir. 1986), and Watson v. Barnhart, 288 F.3d 212 (5th Cir. 2002).
Under Singletary, ALJs are required to determine whether a claimant is capable of not only obtaining, but also maintaining employment. Singletary, 798 F.2d at 822 (“A finding that a claimant is able to engage in substantial gainful activity requires more than a simple determination that the claimant can find employment and that he can physically perform certain jobs; it also requires a determination that the claimant can hold whatever job he finds for a significant period of time.” (emphasis in original)). Such a specific finding is required in “a situation in which, by its nature, the claimant’s physical ailment waxes and wanes in its manifestation of disabling symptoms.” Frank v. Barnhart, 326 F.3d 618, 619 (5th Cir. 2003) (per curiam). The Fifth Circuit in Watson, a progeny of Singletary, gave an example of such a situation as where a claimant’s “back pain prevented him from maintain
However, the Singletary-Watson requirements have been whittled down to some extent by our appellate court’s more recent cases. See Perez v. Barnhart, 415 F.3d 457, 465 (5th Cir. 2005). In Frank, the Court of Appeals made plain that “nothing in Watson suggests that the ALJ must make a specific finding regarding the claimant’s ability to maintain employment in every case.” Frank, 326 F.3d at 619. Noting that “[ujsually, the issue of whether the claimant can maintain employment for a significant period of time will be subsumed in the analysis regarding the claimant’s ability to obtain employment,” the Frank court explained that a separate consideration of whether the claimant is capable of maintaining employment is required on rare occasions where “the claimant’s intermittently recurring symptoms [are] of sufficient frequency or severity [so as] to prevent the claimant from holding a job for a significant period of time.” Id.
In assessing Acosta’s RFC, the ALJ considered her “migraines of varying frequency.” R. 23. In the “Applicable Law” section of his decision, the ALJ stated that RFC is the claimant’s ability to do physical and mental work activities “on a sustained basis” despite limitations from her impairments and cited 20 C.F.R. § 404.1545, the regulation describing RFC, as well as SSR 96-8p, both of which make clear that RFC is a measure of the claimant’s capacity to perform work “on a regular and continuing basis.” R. 20. Nothing in the record indicates that the ALJ did not appreciate that an ability to perform work on a regular and continuing basis is inherent in the definition of RFC. Moreover, Acosta presented no evidence to show that her intermittently recurring headaches prevented her from holding a job for long periods of time or that she “could work temporarily at a particular level of exertion but could not sustain work at that level.” See Castillo v. Barnhart, 151 Fed.Appx. 334, 336 (5th Cir. 2005) (per curiam) (unpublished). Absent such evidence, the ALJ was not required to make a specific finding on whether Acosta can maintain employment. See Dunbar v. Barnhart, 330 F.3d 670, 672 (5th Cir. 2003) (“[A]bsent evidence that a claimant’s ability to maintain employment would be compromised despite his ability to perform employment as an initial matter, or an indication that the ALJ did not appreciate that an ability to perform work on a regular and continuing basis is inherent in the definition of RFC, we do not read Watson to require a specific finding that the claimant can maintain employment.”). The Court therefore concludes that the ALJ’s failure to make such a specific finding was not an error.
Accordingly, Acosta has failed to establish that in assessing her RFC, the ALJ committed a legal error or that the ALJ’s assessment of her RFC lacks support by substantial evidence.
Y. CONCLUSION
Based on the forgoing, IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED.
A separate judgment in accordance with this Memorandum Opinion and Order will issue this date.
. References to the transcript of the record of administrative proceedings [ECF No. 21] filed in this case are designated by "R.” followed by page numbers.
. The regulations define "medium work" as work involving "lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work.” 20 C.F.R. § 404.1567(c).
. '"If you do not have any impairment or combination of impairments which signifi
. See Hampton v. Bowen, 785 F.2d 1308, 1311 (5th Cir. 1986) (referring to the Fifth Circuit's standard as the slight abnormality standard).
. See Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 723 (9th Cir. 2011) ("[A]n ALJ is bound by 20 C.F.R. § 404.1520a.”); Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (20 C.F.R. § 404.1520a ''require[s] application of a 'special technique' at the second and third steps of the five-step framework.” (citations omitted)). See also Randall v. Astrue, 570 F.3d 651, 658 (5th Cir. 2009) (per curiam) (describing the special technique in the context of a Step Three analysis).
. In applying the agency's special technique, an ALJ first rates a claimant's limitations in four broad functional areas. The first three functional areas, i.e., activities of daily living, social functioning, and concentration, persistence, or pace, are rated on a five-point scale of none, mild, moderate, marked, and extreme. 20 C.F.R. § 404.1520a(c)(4). The final functional area, i.e., episodes of decompensation, is rated on a four-point scale of none, one or two, three, and four or more. Id. Next, the ALJ follows § 404.1520a(d)(l), which provides; "If we rate the degree of your limitation in the first three functional areas as "none” or "mild” and "none” in the fourth area, we will generally conclude that your impairment(s) is not severe, unless the evidence otherwise indicates that there is more than a minimal limitation in your ability to do basic work activities.” 20 C.F.R. § 404.1520a(d)(l) (emphasis added). The § 404.1520a(d)(l) analysis is bifurcated under a general rule and an exception to that general rule. Under the general rule, an impairment is not severe if the requisite conditions are met: that is, the impairment causes no more than "mild” limitations in the areas of activities of daily living, social functioning, and concentration, persistence, or pace, and "no” episodes of decompensation. However, the exception to the general rule (the "unless clause”) requires the ALJ to make a broader inquiry: whether the impairment results in "more than a minimal limitation in your ability to do basic work activities”; if it does, a finding that the impairment is not severe is not proper. Consequently, the all-encompassing exception, which in essence swallows the general rule, sets forth the non-severity threshold as “more than a minimal limitation” in ability to work.
. The Court notes that in its brief, the Commissioner does not directly address this precise issue. The Commissioner, however, asserts that Stone is not at issue because the ALJ did not conclude at Step Two that Acosta was not disabled, but instead found her not disabled at Step Four. Comm'r’s Br. 3-4. Alternatively, the Commissioner argues that the ALJ’s analysis of Acosta’s depression complied with Stone. Id. at 4.
. The 1954 amendment defined "disability” as "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 to be of long-continued and indefinite duration....” Social Security Amendments of 1954, Pub.L. No. 83-761, 68 Stat. 1080 (Sept. 1, 1954).
. That amendment provided: “an individual ... shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy....” Social Security Amendments of 1967, Pub.L. No. 90-248, 81 Stat. 868 (Jan. 2, 1968). The statutory definition of disability has since remained unchanged.
. Thus, the 1980 successor of 20 C.F.R. § 404.1504(a) (1979) read, “[a]n impairment is not severe if it does not significantly limit your physical or mental abilities to do basic work activities,” 45 Fed.Reg. 55588 (Aug. 20, 1980) (to be codified at 20 C.F.R.
. That regulation in full text read as follows: "If the four areas considered by us as essential to work have been rated to indicate a degree of limitation as “none” or "slight” in the first and second areas, “never” or "seldom” in the third area, and "never” in the fourth area, we can generally conclude that the impairment is not severe, unless the evidence otherwise indicates there is significant limitation of your mental ability to do basic work activities (see § 404. 1521).” 50 Fed. Reg. 35065 (Aug. 28, 1985) (emphasis added) (to be codified at 20 C.F.R. § 404.1520a(c)(l) (1986)).
. Compare supra note 11, with 65 Fed.Reg. 50775 (Aug. 21, 2000) ("If we rate the degree of your limitation in the first three functional areas as "none” or "mild” and “none” in the fourth area, we will generally conclude that your impairments) is not severe, unless the evidence otherwise indicates that there is more than a minimal limitation in your ability to do basic work activities (see § 404. 1521).” (emphasis added) (to be codified at 20 C.F.R. § 404.1520a(d)(l) (2001)).
. E.g., Vaughn v. Astrue, No. 3:08-CV-1920-L, 2009 WL 3874607, at *5 (N.D.Tex. Nov. 17, 2009); White v. Astrue, No. 4:08-CV-415-Y, 2009 WL 763064, at *2, *9-* 11 (N.D.Tex. Mar. 23, 2009); Yantis v. U.S. Comm’r Soc. Sec. Admin., No. 08-CV-0548, 2009 WL 512189, at *1 (W.D.La. Feb. 27, 2009); Stewart v. Astrue, No. 07-CV-232-C, 2009 WL 187581, at *3 (M.D.La. Jan. 26, 2009); Franzen v. Astrue, 555 F.Supp.2d 720, 728, 735 (W.D.Tex. 2008); Winget v. Astrue, No. MO-07-CV-017, 2007 WL 4975206, at *7 (N.D.Tex. Dec. 14, 2007); Bustos v. Barnhart, No. Civ. A. 5:04-CV-1132-FB (NN), 2005 WL 3353745, at *8 & n. 107 (W.D.Tex. Dec. 1, 2005); Barfield v. Barnhart, 285 F.Supp.2d 827, 834 (S.D.Tex. 2002).
. E.g., Padalecki v. Astrue, 688 F.Supp.2d 576, 580-81 (W.D.Tex. 2010); Luna v. Astrue, No. 3:09-CV-1436-M-BH, 2010 WL 582151, at *6 (N.D.Tex. Feb. 18, 2010); Johnson v. Astrue, No. H-08-3658, 2010 WL 148411, at *17 (S.D.Tex. Jan. 11, 2010); Ruby v. Astrue, No. 3:08-CV-1012-B (BF), 2009 WL 4858060, at *7-*8 (N.D.Tex. Dec. 14, 2009); Scroggins v. Astrue, 598 F.Supp.2d 800, 805-06 (N.D.Tex. 2009); Sanders v. Astrue, No. 3:07-CV-1827-G (BH), 2008 WL 4211146, at *7 (N.D.Tex. Sept. 12, 2008).
. This additional statement by the ALJ in Scroggins essentially tracks the language of SSR 85-28 and the standard set forth by the ALJ in the case at bar.
. In the quoted language, the. words in brackets, i.e., "[non-],” are added by this Court. The Scroggins court’s analysis, read in context, indicates that the court intended to state "a non-severe impairment,” as opposed to "a severe impairment,” in the cited portion of its opinion.
. See supra note 14 (listing cases).
. To the extent that the Fifth Circuit in Estran adopted as its non-severity standard Brady's construction of the significant regulations, it is worth noting how the post-Brady cases from the Eleventh Circuit interpreted the Brady standard. Shortly after Brady was decided, the Eleventh Circuit interpreted Brady to require an inquiry as to whether an impairment “is merely a slight abnormality with minimal effect on [the claimant’s] general ability to work.” Flynn v. Heckler, 768 F.2d 1273, 1274-75 (11th Cir. 1985). “In other words, the issue is whether or not [the impairment] has only a minimal effect on [the claimant's] ability” to perform basic work activities. Id. at 1275. Severity is "measured in terms of its effect upon ability to work, and not simply in terms of deviation from purely medical standards of bodily perfection or normality.” McCruter v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986). Later, to further clarify the Brady standard, the Eleventh Circuit explained that the claimant, whose burden at Step Two is “mild,” "need show only that her impairment is not so slight and its effect is not so minimal.” McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986).
. See, e.g., Brooks v. Shalala, 33 F.3d 1380, 1994 WL 487258, at *1 (5th Cir. 1994) (per curiam) (unpublished) (noting approvingly that the ALJ concluded that the claimant's mental “impairment is a slight abnormality which has only a minimal effect upon the claimant's ability to work and as such does not constitute a severe impairment.” (citing Stone, 752 F.2d at 1101)); Landfried v. Apfel, 218 F.3d 743, 2000 WL 821361, at *2 (5th Cir. 2000) (per curiam) (unpublished) (concluding that the ALJ applied the Stone standard, where the ALJ found Landfried's mental condition was not severe because it “constituted only a minimal limitation on her ability to perform work activities”); Joubert v. Astrue, 287 Fed.Appx. 380, 382 (5th Cir. 2008) (per curiam) (unpublished) (applying Stone standard to conclude that "[s]ubstantial evidence supports the ALJ’s decision that Joubert’s hypertension, chest pain, and back pain did not impose more than a slight limitation on her ability to perform basic work-related activities”).
. See, e.g., Gutierrez v. Barnhart, 2005 WL 1994289, at *4 (5th Cir. 2005) (per curiam) (unpublished) ("An impairment or combination of impairments is severe if it has more than minimal effect on the claimant’s physical or mental ability to do basic work activities” (citing, among others, Stone, 752 F.2d 1099)).
. Arguably, the ALJ set forth "the correct standard ... by reference to ... another [opinion] of the same effect.” Stone, 752 F.2d at 1106. This is because the Administration’s rulings, which the ALJ cited in support of his standard, have binding effect on ALJs, see Spellman v. Shalala, 1 F.3d 357, 361 n. 7 (5th Cir. 1993) ("Social Security Rulings are 'binding on all components of the Administration. These rulings represent precedent final opinions and orders and statements of policy and interpretations that have been adopted by the Administration.’ ” (quoting 20 C.F.R. § 422.406(b)(1) (1991) [now 20 C.F.R. § 402.35(b)(1) ])), and consequently, constitute another opinion "of the same effect.” Stone, 752 F.2d at 1106. Moreover, as discussed supra, in promulgating its minimal effect standard, the Administration expressly referenced Estran and Stone in SSR 85-28. Accordingly, the ALJ’s citation to SSR 85-28 can be said to incorporate by reference that ruling's reference to Estran and Stone, thus conceivably satisfying Stone’s directive for a reference to that opinion or another of the same effect.
. See Hammond v. Barnhart, 124 Fed.Appx. 847, 853 n. 14 (5th Cir. 2005) (unpublished) (“The word major’ in ‘major depressive disorder' is a medical term and does not, in and of itself, require us to consider the disorder ‘severe’ within the meaning of the law.”).
. The record contains no treatment or progress report from MHMR for the period between December 2004 and January 2006, but indicates that she stopped visiting MHMR sometime in March 2005. R. 202.
. The GAF is a subjective determination based on a scale of 1 to 100 of an individual’s overall functioning level "with respect only to psychological, social, and occupational functioning.” Am. Psychiatric Ass'n, Diagnostic & Statistical Manual of Mental Disorders 32 (Text Revision 4th ed. 2000); Boyd v. Apfel, 239 F.3d 698, 701 n. 2 (5th Cir. 2001).
. A GAF score of 41-50 reflects "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).” Diagnostic & Statistical Manual of Mental Disorders, supra, 34. A GAF score of 51-60 reflects “[m]oderate symptoms (e.g. flat affect and circumstantial speech, occasional panic attacks) OR any moderate difficulty in social, occupational, or school function (e.g., few friends, conflicts with peers or co-workers).” Id.
. Mayo Clinic, Migraine: Treatments and Drugs, http://www.mayoclinic.com/health/ migraineheadache/D S00120/DSECTI ON= treatments-and-drugs (last visited Feb. 6, 2012) ("Certain antidepressants are good at helping to prevent some types of headaches, including migraines.”).
. See Charles J. Golden, Patricia Espe-Pfeifer, & Jana Wachsler-Felder, Neuropsychological Interpretations of Objective Psychological Tests 183 (2000) ("While initially [the Digit Span] scale was considered a measure of attention and concentration as well as verbal memory, the WAIS-III conceives of the test as a measure of working memory.”); Jianjun Zhu & Larry Weiss, The Wechsler Scales, in Contemporary Intellectual Assessment: Theories, Tests, and Issues 297, 305 (Dawn P. Flanagan & Patti L. Harrison eds., 2005) (Digit Span measures "auditory short-term memory, sequencing skills, attention, and concentration.”).
. Acosta testified that she cannot "speak, converse in the English language.” R. 32.
. See supra note 6.
. Acosta insists that the ALJ did not consider Dr. Schutte's psychological examination report. Pl.'s Br. 5. To be sure, the ALJ expressly referenced medical records from MHMR and TTUHSC, and Dr. Carrillo’s psychological examination report, but he did not cite to Dr. Schutte’s report. That, however, does not mean that he did not consider Dr. Schutte’s report. See Castillo v. Barnhart, 151 Fed.Appx. 334, 335 (5th Cir. 2005) (per curiam) (unpublished) ("That the ALJ did not specifically cite each and every piece of medical evidence considered does not establish an actual failure to consider the evidence.” (citing Falco v. Shalala, 27 F.3d 160, 163 (5th Cir. 1994))); Brunson v. Astrue, 387 Fed.Appx. 459, 461 (5th Cir. 2010) (per curiam) (unpublished) (“The fact that the ALJ cited certain evidence that he felt supported his decision does not mean that he failed to consider all of the other evidence in the record.”). To the contrary, the ALJ stated that he considered "the entire record.” R. 20.
. See also Mayo Clinic, Valporic Acid: Side Effects, http://www.mayoclinic.com/health/ drug-information/DR602951/DSECTION= side-effects (last visited Feb. 6, 2012) (listing irritability as one of the side effects of Depakote).
. So far as appears, at the time she made that specific comment to Dr. Fragoso, she had not worked since July 2004, when Thermotech, her employer of eight or nine years, closed the plant where she was employed and she was laid off. R. 32, 131.
. “Nonexertional limitations” affect a person's ability to meet the non-strength demands of a job. 20 C.F.R. § 404.1569a(c). Examples of nonexertional limitations include difficulty in seeing or hearing and difficulty in performing the nonexertional aspects of work-related activities due to pain. Id.
. "Paragraph B” criteria refer to the degree of functional limitations resulting from an individual's mental disorders in four broad functional areas: (1) activities of daily living; (2) social functioning; (3) concentration, persistence or pace; and (4) episodes of decompensation. 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.00 et seq.; 20 C.F.R. § 404.1520a(c)(3).
. Dr. Fragoso's note dated December 21, 2004, indicates that Acosta was treated by Dr. Jose Ramirez, a neurologist, for her migraine headaches and she had been taking Amitriptyline for five years. R. 274; see also R. 299.
. A Computerized Tomography (CT) scan of Acosta's head performed in May 2006 was considered to be “within normal limits.” R. 299.
. See also Mayo Clinic, Amitriptyline (Oral Route): Side Effects, http://www.mayoclinic. com/health/drug-information/DR602731/ DSECTION=side-effects (last visited Feb. 6, 2012) (listing "swelling of face, ankles, or hands” as side effects of Amitriptyline).
. Treatment notes from Acosta’s doctors reflect that she began to experience migraine headaches sometime in 1995 after she had turned thirty-five years old, R. 299, and she worked at Thermotech between August 1996 and July 2004. R. 131.
Reference
- Full Case Name
- Carmen ACOSTA v. Michael ASTRUE, Commissioner of the Social Security Administration
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- Published