Case 3:12-cv-00098-BN Document 33 Filed 09/20/13 Page 1 of 12 PageID 1022
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
CAROLYN W. COLVIN,
Acting Commissioner of Social Security, §
MEMORANDUM OPINION AND ORDER
Plaintiff Marsha Nesbitt (“Plaintiff” or “Claimant”) seeks judicial review of a
final adverse decision of the Commissioner of Social Security pursuant to 42 U.S.C.
§ 405(g). For the reasons stated herein, the hearing decision is reversed and remanded.
Plaintiff alleges that she is disabled due to a variety of ailments, including
coronary artery disease, left forearm neuropathy, diabetes, morbid obesity,
gastrointestinal disease, lumbar syndrome, and bipolar disorder. See Dkt. No. 24 at 10-
14. After her applications for disability and supplemental security income (“SSI”)
benefits were denied initially and on reconsideration, Plaintiff requested a hearing
before an administrative law judge (“ALJ”). See Administrative Record [Dkt. No. 19]
(“Tr.”) at 11.1 That hearing was held on November 9, 2009. See id. At the time of the
1 The Administrative Record contains two copies of the ALJ’s decision. The ALJ
initially issued her decision on March 12, 2010. See Tr. at 23. Plaintiff and her counsel
did not receive the decision until June 2, 2010, and, as such, Plaintiff’s deadline to
Case 3:12-cv-00098-BN Document 33 Filed 09/20/13 Page 2 of 12 PageID 1023
hearing, Plaintiff was 39 years old. See id. at 38. She is a high school graduate and
attended college for approximately one and a half years. See id. She has past work
experience as a home health care provider, medical assistant, and telemarketer. See
id. at 17. Plaintiff has not engaged in substantial gainful activity since September 1,
2006. See id. at 13.
The ALJ found that Plaintiff was not disabled and therefore not entitled to
disability or SSI benefits. Although the medical evidence established that Plaintiff
suffered from coronary artery disease, diabetes mellitus, left forearm neuropathy,
obesity, and an affective mood disorder, the ALJ concluded that the severity of those
impairments did not meet or equal any impairment listed in the social security
regulations. See id. at 13. The ALJ further determined that Plaintiff had the residual
functional capacity to perform a limited range of light work but could not return to her
past relevant employment. See id. at 18. Relying on the testimony of a vocational
expert, the ALJ found that Plaintiff was capable of working as a ticket taker, parking
lot attendant, and counter clerk – jobs that exist in significant numbers in the national
economy. See id. at 18. Given her age, education, and exertional capacity for light work,
the ALJ determined that Plaintiff was not disabled under the Medical-Vocational
Guidelines. See id. at 19.
appeal the decision had passed. Plaintiff’s counsel therefore requested that the ALJ
issue a new decision with an “issued-on” date to reflect when Plaintiff and her counsel
received the decision. See id. at 22. The ALJ re-issued her decision, without substantial
changes, on June 3, 2010. See id. at 19. For purposes of this opinion, the Court will cite
to the June 3, 2010 decision.
Case 3:12-cv-00098-BN Document 33 Filed 09/20/13 Page 3 of 12 PageID 1024
Plaintiff appealed that decision to the Appeals Council. The Council affirmed.
Plaintiff then filed this action in federal district court. Plaintiff challenges the
hearing decision on two general grounds: (1) the assessment of her residual functional
capacity is not supported by substantial evidence and results from reversible legal
error, and (2) the finding that she can perform other work in the national economy was
based on an improper hypothetical question to the vocational expert. See Dkt. No. 24
at 8-9; Dkt. No. 29 at 1, 5. The ALJ made findings with respect to physical and mental
limitations, but Plaintiff’s appeal focuses only on issues with respect to the ALJ’s
mental residual functional capacity (“RFC”) assessment.
The Court determines that the hearing decision is reversed, and this case is
remanded to the Commissioner of Social Security for further proceedings consistent
with this opinion.2
Judicial review in social security cases is limited to determining whether the
Commissioner’s decision is supported by substantial evidence and whether the proper
legal standards were used to evaluate the evidence. See 42 U.S.C. § 405(g); Ripley v.
Chater, 67 F.3d 552, 555 (5th Cir. 1995). Substantial evidence is “more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). The
Commissioner, rather than the courts, must resolve conflicts in the evidence, including
2 By remanding this case for further administrative proceedings, the Court does
not suggest that Plaintiff is or should be found disabled.
Case 3:12-cv-00098-BN Document 33 Filed 09/20/13 Page 4 of 12 PageID 1025
weighing conflicting testimony and determining witnesses’ credibility, and the Court
does not try the issues de novo. See Martinez v. Chater, 64 F.3d 172, 174 (5th Cir.
1995); Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994). This Court may not
reweigh the evidence or substitute its judgment for the Commissioner’s but must
scrutinize the entire record to ascertain whether substantial evidence supports the
hearing decision. See Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988).
A disabled worker is entitled to monthly social security benefits if certain
conditions are met. 42 U.S.C. § 423(a). The Act defines “disability” as the inability to
engage in substantial gainful activity by reason of any medically determinable physical
or mental impairment that can be expected to result in death or last for a continued
period of 12 months. See id. § 423(d)(1)(A); see also Cook v. Heckler, 750 F.2d 391, 393
(5th Cir. 1985). The Commissioner has promulgated a five-step sequential evaluation
process that must be followed in making a disability determination:
The hearing officer must ascertain whether the claimant is
engaged in substantial gainful activity. A claimant who is working
is not disabled regardless of the medical findings.
The hearing officer must determine whether the claimed
impairment is “severe.” A “severe impairment” must significantly
limit the claimant’s physical or mental ability to do basic work
activities. This determination must be made solely on the basis of
the medical evidence.
The hearing officer must decide if the impairment meets or equals
in severity certain impairments described in Appendix 1 of the
regulations. The hearing officer must make this determination
using only medical evidence.
Case 3:12-cv-00098-BN Document 33 Filed 09/20/13 Page 5 of 12 PageID 1026
If the claimant has a “severe impairment” covered by the
regulations, the hearing officer must determine whether the
claimant can perform his or her past work despite any limitations.
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
See 20 C.F.R. § 404.1520(b)-(f); Audler v. Astrue, 501 F.3d 446, 447-48 (5th Cir. 2007)
(“In evaluating a disability claim, the Commissioner conducts a five-step sequential
analysis to determine whether (1) the claimant is presently working; (2) the claimant
has a severe impairment; (3) the impairment meets or equals an impairment listed in
appendix 1 of the social security regulations; (4) the impairment prevents the claimant
from doing past relevant work; and (5) the impairment prevents the claimant from
doing any other substantial gainful activity.”). The claimant bears the initial burden
of establishing a disability through the first four steps of the analysis; on the fifth, the
burden shifts to the Commissioner to show that there is other substantial work in the
national economy that the claimant can perform. See Audler, 501 F.3d at 448. A finding
that the claimant is disabled or not disabled at any point in the five-step review is
conclusive and terminates the analysis. See Lovelace v. Bowen, 813 F.2d 55, 58 (5th
In reviewing the propriety of a decision that a claimant is not disabled, the
Court’s function is to ascertain whether the record as a whole contains substantial
evidence to support the Commissioner’s final decision. The Court weighs four elements
Case 3:12-cv-00098-BN Document 33 Filed 09/20/13 Page 6 of 12 PageID 1027
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.
See Martinez, 64 F.3d at 174.
The ALJ has a duty to fully and fairly develop the facts relating to a claim for
disability benefits. See Ripley, 67 F.3d at 557. If the ALJ does not satisfy this duty, the
resulting decision is not substantially justified. See id. However, the Court does not
hold the ALJ to procedural perfection and will reverse the ALJ’s decision as not
supported by substantial evidence where the claimant shows where the ALJ failed to
fulfill the duty to adequately develop the record only if that failure prejudiced Plaintiff,
see Jones v. Astrue, 691 F.3d 730, 733 (5th Cir. 2012) – that is, only if Plaintiff’s
substantial rights have been affected, see Audler, 501 F.3d at 448. “Prejudice can be
established by showing that additional evidence would have been produced if the ALJ
had fully developed the record, and that the additional evidence might have led to a
different decision.” Ripley, 67 F.3d at 557 n.22. Put another way, Plaintiff “must show
that he could and would have adduced evidence that might have altered the result.”
Brock v. Chater, 84 F.3d 726, 728-29 (5th Cir. 1996).
Plaintiff raises three issues on appeal in her initial opening brief. See Dkt. No.
24 at 8-9. But these three issues may be combined to present two issues for the Court
to consider: (1) whether substantial evidence supports the ALJ’s RFC assessment as
to Plaintiff’s mental disability, and (2) whether the ALJ’s hypothetical question to the
Case 3:12-cv-00098-BN Document 33 Filed 09/20/13 Page 7 of 12 PageID 1028
vocational expert properly accounted for Plaintiff’s mental disability. The Court only
needs to address the first of Plaintiff’s issues because reversal is clearly warranted on
that ground alone.
Though Plaintiff has hundreds of pages of medical records, she has very few
records related to her mental disability. Moreover, she has only one treating physician
– Dr. Ardashes Mirzatuny – whom she saw for her mental impairment. Plaintiff argues
that the ALJ failed to consider Dr. Mirzatuny’s opinion. See Dkt. No. 24 at 23. Plaintiff
further contends that the ALJ implicitly rejected Dr. Mirzatuny’s opinion, did not
provide good cause for doing so, and did not undertake the required analysis and
determine what weight Dr. Mirzatuny’s opinion should be given. See id. at 26-28. The
end result, according to Plaintiff, was that the ALJ improperly rejected the only
treating physician opinion with respect to Plaintiff’s mental disability and therefore
was left without any medical support for her RFC assessment. See id. at 28. Plaintiff
relies on Ripley v. Chater, 67 F.3d 552 (5th Cir. 1995), to support her contention that
in rejecting Dr. Mirzatuny’s opinion, the ALJ left her RFC assessment without support
for the effect Plaintiff’s mental impairment has on her ability to work. See id. at 29-30.
Defendant responds that the ALJ properly considered the medical evidence and
that, as such, substantial evidence exists to support the ALJ’s RFC assessment. See
Dkt. No. 27 at 9. More specifically, Defendant argues that the ALJ specifically
discussed Dr. Mirzatuny’s opinion and did sufficiently analyze the weight to be given
to Dr. Mirzatuny’s opinion. See id. Finally, Defendant argues that Ripley is not
Case 3:12-cv-00098-BN Document 33 Filed 09/20/13 Page 8 of 12 PageID 1029
analogous to the instant case and that the ALJ’s mental ability RFC assessment is
supported by substantial evidence. See id. at 9-10.
The RFC is an assessment, based on all the relevant evidence, of a claimant’s
ability to do work on a sustained basis in an ordinary work setting despite her
impairments. See 20 C.F.R. §§ 404.1545(a), 416.954(a). The RFC refers to the most that
a claimant is able to do despite her physical and mental limitations. See 20 C.F.R. §§
404.1545(a), 416.954(a). The ALJ considers the RFC, along with the claimant’s age,
education, and work experience, to make a determination as to whether the claimant
is disabled. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). “Generally, an ALJ should
request a medical source statement that describes the types of work a claim can still
perform.” Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995); see also Johnson v. Astrue,
No. 3;12-cv-4175-BK, 2013 WL 3297594, at *4 (N.D. Tex. July 1, 2013). The absence
of such a statement is only reversible error, however, if the ALJ’s decision is not
supported by substantial evidence. See Ripley, 67 F.3d at 557.
In Ripley, the ALJ ruled that the claimant could perform sedentary work even
though there was no medical evidence or testimony supporting that conclusion. See id.
The Court of Appeals noted that the claimant’s record contained a vast amount of
evidence establishing that he had a back problem but did not clearly establish the
effect that condition had on his ability to work. See id. The Fifth Circuit therefore
remanded with instructions for the ALJ to obtain a report from a treating physician
regarding the effects of the claimant’s back condition on his ability to work. See id. at
557-58. The Court of Appeals rejected the Commissioner’s attempt to argue that the
Case 3:12-cv-00098-BN Document 33 Filed 09/20/13 Page 9 of 12 PageID 1030
medical evidence substantially supported the ALJ’s conclusion because the court was
unable to determine the effects of the claimant’s conditions, “no matter how ‘small,’”
on his ability to work, absent a report from a qualified medical expert. See id. at 558
The Court acknowledges Defendant’s argument that Ripley is distinct from the
case at hand but is not convinced by it. Defendant seems to argues that the holding in
Ripley is limited to those circumstances involving a “vast” amount of medical records.
See Dkt. No. 27 at 10. But the Ripley decision imposes no such limitation on its
holding, and courts following Ripley have not required as much. See Shugart v. Astrue,
No. 3:12-cv-1705-BK, 2013 WL 991252, at *5-*6 (N.D. Tex. Mar. 13, 2013); Newman
v. Astrue, No. 3:11-cv-2033-B-BK [Dkt. No. 33] (N.D. Tex. July 16, 2012), rec. adopted,
2012 WL 3104648, at *1 (N.D. Tex. July 13, 2012) [Dkt. No. 29-1]; Newsome v.
Barnhart, No. 3:03-cv-3030-D, 2004 WL 3312833, at *1 (N.D. Tex. Oct. 8, 2004).
Moreover, there is some medical evidence to suggest that Plaintiff’s mood
affective disorder is substantial, such as medical notes that she first began having
mood disorder issues after her open heart surgery in 2008 and that she had suffered
from crying spells, decreased motivation, and a sense of worthlessness associated with
paranoia and that she had thoughts of crashing her car or going off a bridge. See Tr.
at 393, 403.
In this case, the ALJ apparently attempted to compensate for Plaintiff's
affective mood disorder when she limited Plaintiff to simple work. See Tr. at 17
(determining that, despite some mental health limitations, and in light of Plaintiff’s
Case 3:12-cv-00098-BN Document 33 Filed 09/20/13 Page 10 of 12 PageID 1031
full range of daily activities, Plaintiff could perform the demands of simple work). But
there is a dearth of medical evidence in the record to support a determination that
Plaintiff can perform such work despite her mental impairments. Accord Ripley, 67
F.3d at 557-58. The only medical source statement that addresses Plaintiff’s ability to
do work-related activities in light of her affective mood disorder is that of Dr.
Mirzatuny. The ALJ did not accept Dr. Mirzatuny’s opinion that Plaintiff's GAF was
43, which indicates serious symptomatology, see Tr. at 17, and which found Plaintiff
had substantial limitations in many regards necessary to complete work, see id. at 496-
97. Rather, in determining Plaintiff’s ability to do simple work despite her mood
affected disorder, the ALJ pointed to a few of Plaintiff’s subsequent medical records,
noting that some subsequent medical records did not contain notes regarding
depressive symptoms and to Plaintiff’s daily activities – not medical evidence. See id.
at 17. The Court notes that those records relied on by the ALJ – Exhibit 14F and 19F
– were not mental health records. See id. at 477-483, 523-526. This whole course of
conduct is what Ripley forbids. See Ripley, 67 F.3d at 557.
Even assuming that the ALJ was entitled to not give Dr. Mirzatuny’s opinion
any weight, there is then no evidence supporting the ALJ’s RFC findings at step 3 and
step 5 that Plaintiff can perform simple work, such as ticket taker, parking lot
attendant, or counter clerk. See, e.g., Williams v. Astrue, 355 F. App’x 828, 831-32 (5th
Cir. 2009) (reversing and remanding where the ALJ rejected the opinions of the
claimant’s treating physicians and relied on his own medical opinions as to the
limitations presented by the claimant’s back problems in determining RFC). While the
Case 3:12-cv-00098-BN Document 33 Filed 09/20/13 Page 11 of 12 PageID 1032
ALJ may choose to reject Dr. Mirzatuny’s opinions, she cannot then independently
decide the effects of Plaintiff's mental impairments on her ability to perform
work-related activities, as that is prohibited by Ripley. See 67 F.3d at 557-58. Rather,
at that point, it became incumbent upon the ALJ to obtain an expert medical opinion
about the types of work tasks that Plaintiff could still perform given her impairments.
See id. at 557.
Therefore, the ALJ erred in reaching her conclusion that Plaintiff could do
simple work because the record lacks substantial evidence to support her findings
concerning the effect of her mental condition on her work-related abilities. See
Newsome, 2004 WL 3312833, at *4; Newman v. Astrue, No. 3:11-cv-2033-B-BK [Dkt.
No. 33] (N.D. Tex. July 16, 2012), rec. adopted, 2012 WL 3104648, at *1 (N.D. Tex. July
13, 2012) [Dkt. No. 29-1].
Reversal is only warranted, however, if the claimant shows that she was
prejudiced by the ALJ’s error. Prejudice is established when the claimant demonstrates
that she would have adduced evidence that might have changed the result. See Carey
v. Apfel, 230 F.3d 131, 142 (5th Cir. 2000). Plaintiff has demonstrated prejudice by
pointing to evidence that the ALJ could have obtained and that might have changed
the result – specifically, a subsequent medical source statement regarding Plaintiff’s
mental health. See Newsome, 2004 WL 3312833, at *4. As such, reversal and remand
for further proceedings is required.
Case 3:12-cv-00098-BN Document 33 Filed 09/20/13 Page 12 of 12 PageID 1033
Because the Court is remanding based on the ALJ's error in determining
Plaintiff's RFC, there is no need for the Court to address the remaining issue, which
is moot in light of the Court’s ruling.
The hearing decision is reversed, and this case is remanded to the Commissioner
of Social Security for further proceedings consistent with this opinion.
DATED: September 20, 2013
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE