United States District Court, W.D. Texas, Austin Division
BRITTANY N. HERRON, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
SPARKS, UNITED STATES DISTRICT JUDGE
REMEMBERED on this day the Court reviewed the file in the
above-styled cause, and specifically Plaintiff Brittany N.
Herron's Brief on Review of the Denial of Benefits by the
Commissioner of Social Security [#12], Defendant Carolyn W.
Colvin, Acting Commissioner of the Social Security
Administration's Brief in Support of the
Commissioner's Decision [#14], the Report and
Recommendation of the United States Magistrate Judge [#15],
and Plaintiffs Objections to the Report and Recommendation
[#16]. Having reviewed the documents, the governing law, and
the file as a whole, the Court now enters the following
opinion and orders ACCEPTING the Report and Recommendation
and AFFIRMING the judgment of the Commissioner.
matters in the case were referred to the Honorable Andrew W.
Austin, United States Magistrate Judge, for report and
recommendation (R&R) pursuant to 28 U.S.C. § 636(b)
and Rule 1(h) of Appendix C of the Local Court Rules of the
United States District Court for the Western District of
Texas, Local Rules for the Assignment of Duties to United
States Magistrate Judges. The Magistrate Judge issued his
R&R, finding the Commissioner's decision should be
affirmed. Plaintiff is entitled to de novo review of the
portions of the Magistrate Judge's report to which she
filed specific objections. 28 U.S.C. § 636(b)(1). All
other review is for plain error. Douglass v. United
Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir.
1996) (en banc). Nevertheless, this Court has reviewed the
entire file de novo, and agrees with the Magistrate
an appeal from a denial of child's disability benefits
and supplemental security income (SSI). On May 18, 2012,
Plaintiff Brittany N. Herron protectively filed applications
for child's disability benefits and SSI. Social Security
Tr. (Tr.) [#9] at 289-99. In her applications, Plaintiff
alleged she has been disabled since January 1, 2003, due to
endometriosis, fainting, seizures, inflamed lungs, and PTSD.
Id. at 346. The Commissioner denied Plaintiffs
applications and her request for reconsideration.
Id. at 159-183.
then requested a hearing on the Commissioner's denial
before an Administrative Law Judge (ALJ), which was held on
May 30, 2014. Id. at 32-51. Plaintiff, medical
expert Thomas McKnight, Jr., Ph.D (ME), and vocational expert
Thomas Paulson (VE) testified at the hearing. During the
hearing, Plaintiff amended her alleged disability onset date
from January 1, 2003, to March 1, 2012, the date she last
worked full time. Id. at 43-44. At the end of the
hearing, the ALJ ordered that Plaintiff undergo a
consultative mental examination. Id. at 76. On June
12, 2014, Gerald Gardner, Ph.D., completed the exam.
Id. at 939-51.
September 24, 2014, the ALJ denied Plaintiffs application,
id. at 9-32, and the Appeals Council declined
Plaintiffs request for review on February 1, 2016.
Id. at 1-6. Plaintiff has exhausted her
administrative remedies and now seeks judicial review of the
ALJ's decision pursuant to 42 U.S.C. § 405(g).
Standard of Review
review of the ALJ's decision is limited. Specifically,
this Court reviews: (1) whether the ALJ's decision was
supported by substantial evidence; and (2) if so, whether the
ALJ made any errors of law in evaluating the evidence.
Austin v. Shalala, 994 F.2d 1170, 1174 (5th Cir.
1993). Procedurally, the administrative process need not have
been perfect, and this Court "will not vacate a judgment
unless the substantial rights of a party have been
affected." Mays v. Bowen, 837 F.2d 1362, 1364
(5th Cir. 1988). Procedural errors are therefore a basis for
remand only if they "would cast into doubt the existence
of substantial evidence to support the ALJ's
decision." Morris v. Bowen, 864 F.2d 333, 334
(5th Cir. 1988).
evidence "means more than a scintilla, but less than a
preponderance, " Harrell v. Bowen, 862 F.2d
471, 475 (5th Cir. 1988), and is "evidence that a
reasonable mind would accept as adequate to support the
decision." Morris, 864 F.2d at 334. In making
these determinations, the Court must "carefully
scrutinize the record" to determine if there is
substantial evidence to support the ALJ's conclusions,
but the Court can neither re-weigh the evidence nor
substitute its judgment for that of the ALJ. Hollis v.
Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988). If the Court
finds substantial evidence to support the decision, the Court
must uphold the decision. See Selders v. Sullivan,
914 F.2d 614, 617 (5th Cir. 1990). The Court considers four
elements of proof when determining whether there is
substantial evidence of a disability: (1) objective medical
facts; (2) diagnoses and opinions of treating and examining
physicians; (3) the claimant's subjective evidence of
pain and disability; and (4) the claimant's age,
education, and work history. Martinez v. Chater, 64
F.3d 172, 173 (5th Cir. 1995).
Social Security Act defines "disability" as an
"inability to engage in any substantial gainful activity
by reason of any medically determinable physical or mental
impairment . . . which has lasted or can be expected to last
for a continuous period of not less than 12 months." 42
U.S.C. § 423(d)(1)(A). To determine if a claimant is
able to engage in "substantial gainful activity"
(and therefore if he is disabled), the Commissioner follows a
1. The hearing officer must first ascertain whether the
claimant is engaged in substantial gainful activity. A
claimant who is working is not disabled regardless of the
2. The hearing officer must then determine whether the
claimed impairment is "severe." A "severe
impairment" must significantly limit the claimant's
physical or mental ability to do basic work activities. This
determination must be made solely on the basis of the medical
3. The hearing officer must then determine if the impairment
equals or exceeds in severity certain impairments described
in Appendix 1 of the regulations. This determination is made
using only medical evidence.
4. If the claimant has a "severe impairment"
covered by the regulations, the hearing officer must
determine whether the claimant can perform his past work
despite any limitations.
5. If the claimant does not have the residual functional
capacity to perform past work, the hearing officer
must decide whether the claimant can perform any other
gainful and substantial work in the economy. This
determination is made on the basis of the claimant's age,
education, work experience, and residual functional capacity.
See Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir.
1994); 20 C.F.R. § 404.1520.
finding of disability or no disability at any step is
conclusive and terminates the analysis. Greenspan v.
Shalala, 38 F.3d 232, 236 (5th Cir. 1994). The claimant
has the burden of proof for the first four steps.
Selders, 914 F.2d at 618. At step five, the burden
initially shifts to the Commissioner to identify other work
the applicant is capable of performing. Id. If the
Commissioner "fulfills his burden of pointing out
potential alternative employment, the burden then shifts back
to the claimant to prove that he is unable to perform the
alternate work." Id. (internal quotation marks
and citation omitted).
determined Plaintiff has the following impairments:
thrombocytopenia; possible endometriosis; depressive
disorder, not otherwise specified; anxiety disorder, not
otherwise specified, with panic symptoms; PTSD; and
borderline intellectual functioning. Tr. at 15. Proceeding
through the five-step analysis, the ALJ found as follows.
First, Plaintiff is not engaged in substantial gainful
activity, although since March 1, 2012, she "has
essentially worked full-time for her sister providing daily
childcare for her three-year old niece and eight-month old
nephew." Id. at 14-15. Second, Plaintiffs
impairments are "severe because the impairments have
been diagnosed by acceptable medical sources and they cause
more than a minimal effect on [Plaintiffs] ability to perform
basic, work-related activities." Id. at 15-16.
Third, none of Plaintiff s impairments, either alone or in
combination, meet or medically equal any of the impairments
listed in Appendix 1 of the regulations. Id. at
16-18. Fourth, Plaintiff is unable to perform her past
relevant work as a telemarketer. Id. at 23.
to the fifth factor, the ALJ determined that despite
Plaintiffs inability to perform her past job, there are jobs
in the national economy which Plaintiff would presently be
able to perform, such as a laundry folder, housekeeping
cleaner, or small part assembler. Id. at 23-24. The
ALJ found Plaintiffs "reported activities of daily
living show that she is able to perform many tasks including
daily childcare which are tasks that transfer well to a work
setting." Id. at 20. ...