IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MIRIAM HERRING, §

 §

Plaintiff, §

 § Civil Action No. 3:04-CV-1563-D

VS. §

 §

JO ANNE B. BARNHART, §

COMMISSIONER OF SOCIAL §

SECURITY, §

 §

Defendant. §

MEMORANDUM OPINION

Plaintiff Miriam Herring (“Herring”) brings this action under

§ 205(g) of the Social Security Act (the “Act”), 42 U.S.C.

§ 405(g), for judicial review of the final decision of the

Commissioner of Social Security (“Commissioner”) denying her

application for disability insurance benefits and supplemental

security income benefits under titles II and XVI of the Act.

Concluding that Herring has failed to demonstrate reversible error,

the decision is AFFIRMED. 

 I

Herring was born December 24, 1982. She applied for

disability insurance benefits and supplemental security income

benefits on April 12, 2002, with a protective filing date of March

27, 2002 for the supplemental security income benefits, alleging

that she became disabled on February 25, 2002 because of mental

illness. Herring has a high school education but no past relevant

work experience, although she has worked at a movie theater,

 

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1In his finding that supported this conclusion, see R. 14, the

ALJ did not explicitly cite SSR 85-15, 1985 WL 56857 (S.S.A.)

(1985), but he substantially tracked its language, finding that

Herring “retain[ed] the ability to meet the basic mental demands of

competitive, remunerative, unskilled work, to include the ability

(on a sustained basis) to understand, remember, and carry out

simple instructions; to respond appropriately to supervision,

coworkers, and usual work situations; and to deal with changes in

a routine work setting.” R. 14.

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department store, and pizza restaurant. Her application was denied

initially and on reconsideration, and she requested a hearing. The

Administrative Law Judge (“ALJ”) conducted a hearing and denied her

claim. He found at step two of the five-step process that her

bipolar disorder was a severe mental impairment; found at step

three that it was not severe enough to meet or medically equal an

impairment in the Listing of Impairments, 20 C.F.R. Part 404,

Subpart P, Appendix 1; found at step four that she retained the

residual functional capacity (“RFC”) to work at all exertional

levels, except that she is limited to jobs requiring only simple 1-

2 tasks;1

 and, at step five, shifted the burden to the Commissioner

and, using the Medical-Vocational Guidelines of Subpart P, Appendix

2, determined that, despite her nonexertional limitations, she

could perform a significant number of jobs in the national economy

and was not disabled (“that the erosion of [her] occupational base

is so slight that a sufficient occupational base remains.”). R.

16.

Herring sought review by the Appeals Council, which denied her

request. The ALJ’s decision thus became the final decision of the

 

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Commissioner. Herring now seeks judicial review, raising two

arguments: first, the ALJ’s finding that she was not wholly

credible is not supported by substantial evidence; and second, the

ALJ’s failure to give controlling weight to the medical evidence

from her treating physician is not supported by substantial

evidence.

II

This court’s review of the Commissioner’s decision is limited

to determining whether substantial evidence supports the decision

and whether the Commissioner applied the proper legal standards to

evaluate the evidence. Ripley v. Chater, 67 F.3d 552, 555 (5th

Cir. 1995); Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995)

(per curiam). “The Commissioner’s decision is granted great

deference and will not be disturbed unless the reviewing court

cannot find substantial evidence in the record to support the

Commissioner's decision or finds that the Commissioner made an

error of law.” Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995)

(footnote omitted). 

“The court may not reweigh the evidence or try the issues de

novo or substitute its judgment for that of the [Commissioner].”

Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir. 1984). “If the

Commissioner's findings are supported by substantial evidence, then

the findings are conclusive and the Commissioner’s decision must be

affirmed.” Martinez, 64 F.3d at 173. “Substantial evidence is

 

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‘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 (1971)). “It is more than a mere scintilla, and less than

a preponderance.” Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir.

1993) (citing Moore v. Sullivan, 919 F.2d 901, 904 (5th Cir. 1990)

(per curiam)). “To make a finding of ‘no substantial evidence,’

[the court] must conclude that there is a ‘conspicuous absence of

credible choices’ or ‘no contrary medical evidence.’” Dellolio v.

Heckler, 705 F.2d 123, 125 (5th Cir. 1983)). Even if the court

should determine that the evidence preponderates in the claimant’s

favor, the court must still affirm the Commissioner’s findings if

there is substantial evidence to support these findings. See Carry

v. Heckler, 750 F.2d 479, 482 (5th Cir. 1985). The resolution of

conflicting evidence is for the Commissioner rather than for this

court. See Patton v. Schweiker, 697 F.2d 590, 592 (5th Cir. 1983)

(per curiam). 

For purposes of social security determinations, “disability”

means an inability to engage in substantial gainful activity

because of any medically determinable physical or mental impairment

or combination of impairments that could be expected either to

result in death or to last for a continuous period of not less than

12 months. 42 U.S.C. § 423(d)(1)(A). To determine whether a

claimant is disabled, the Commissioner uses a five-step sequential

 

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inquiry. Leggett, 67 F.3d at 563; Martinez, 64 F.3d at 173-74.

The Commissioner must consider whether (1) the claimant is

presently working; (2) the claimant’s ability to work is

significantly limited by a physical or mental impairment; (3) the

claimant’s impairment meets or equals an impairment listed in

Appendix 1, Subpart P, Regulation No. 4; (4) the impairment

prevents the claimant from doing past relevant work; and (5) the

claimant cannot presently perform relevant work that exists in

significant numbers in the national economy. Leggett, 67 F.3d at

563 n.2; Martinez, 64 F.3d at 173-74; 20 C.F.R. § 404.1520 (2004).

“The burden of proof is on the claimant for the first four steps,

but shifts to the [Commissioner] at step five.” Bowling v.

Shalala, 36 F.3d 431, 435 (5th Cir. 1994) (per curiam) (citing

Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989) (per

curiam)). At step five, once the Commissioner demonstrates that

other jobs are available to a claimant, the burden of proof shifts

to the claimant to rebut this finding. Selders v. Sullivan, 914

F.2d 614, 618 (5th Cir. 1990) (per curiam).

When determining the propriety of a decision of “not

disabled,” this court’s function is to ascertain whether the record

considered as a whole contains substantial evidence that supports

the final decision of the Commissioner, as trier of fact. The

court weighs four elements of proof to decide if there is

substantial evidence of disability: (1) objective medical facts;

 

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(2) diagnoses and opinions of treating and examining physicians;

(3) the claimant’s subjective evidence of pain and disability; and

(4) age, education, and work history. Martinez, 64 F.3d at 174

(citing Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991) (per

curiam)). 

“The ALJ has a duty to develop the facts fully and fairly

relating to an applicant’s claim for disability benefits.” Ripley,

67 F.3d at 557. “If the ALJ does not satisfy [this] duty, [the]

decision is not substantially justified.” Id. Reversal of the

ALJ’s decision is appropriate, however, “only if the applicant

shows that [she] was prejudiced.” Id. The court will not overturn

a procedurally imperfect administrative ruling unless the

substantive rights of a party have been prejudiced. See Smith v.

Chater, 962 F. Supp. 980, 984 (N.D. Tex. 1997) (Fitzwater, J.). 

III

Herring argues first that the ALJ’s finding that she was not

wholly credible is not supported by substantial evidence. 

A

Herring’s argument appears to consist of several parts that

are at least somewhat related. She focuses initially on the

following finding of the ALJ and compares the content of the

exhibit he cites (Exhibit 7F) with the testimony that she gave at

the hearing. The ALJ found:

 

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One strong indication of the credibility of an

individual’s statements is their consistency,

both internally and with other information in

the case record (SSR 96-7p). In this regard,

while the medical evidence shows that the

claimant’s mental impairment has stabilized,

the testimony by both the claimant and her

mother suggested substantially more

limitations in her daily activities than were

reported in November 2002 (Exhibit 7F).

R. 15. In Exhibit 7F, which consists of the diagnosis and

underlying report of Samir C. Wahby, M.D. (“Dr. Wahby”), a

consultative examining psychiatrist, the following is recounted as

“FUNCTIONAL INFORMATION”:

Her activities of daily living consist of

watching TV. She will shower, cook and do the

laundry. She will go to the grocery store

with her mother and to the mall with her

mother. She has many friends and they will

visit her. She likes to read. She will phone

her friends. She likes to go shopping and to

exercise.

R. 142. In the finding that Herring addresses, the ALJ essentially

concluded that Herring’s credibility could be questioned because

the medical evidence shows that her mental impairment has

stabilized, and she and her mother testified to substantially more

limitations in her daily activities than Dr. Wahby reported in his

consultative examination report of November 15, 2002. 

Herring attempts to demonstrate that the testimony and exhibit

are not inconsistent and can be reconciled. She urges that the

exhibit does not contain detail like that given at the hearing or

an explanation of how she performs the activity, and she explains

 

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why her hearing testimony can be harmonized with the exhibit and

why her description of her daily activities is not contradicted by,

and in fact supports, her claims of disability. 

Herring next cites SSR 96-7p, Policy Interpretation Ruling

Titles II and XVI: Evaluation of Symptoms in Disability Claims:

Assessing the Credibility of an Individual’s Statements, SSR 96-7p,

1996 WL 374186 (S.S.A.) (1996), and posits that the ALJ must state

his reasons for his finding concerning her credibility.

Herring also argues that her description of her activities

does not contradict her claims of disability and that there is no

evidence in the record that contradicts her testimony, so the ALJ’s

finding that she lacks credibility is not supported by substantial

evidence. She maintains that the ALJ’s credibility conclusions are

all based on Exhibit 7F, Dr. Wahby’s report. She advances the

conclusory assertion that the report is not substantial evidence,

suggesting (without clearly saying so) that this is because he is

a physician who examined her at the request of the Social Security

Administration. Herring then quotes this part of Dr. Wahby’s

prognosis: “She still has psychomotor retardation with a flat

affect from the medication. She has difficulty functioning and has

free-floating anxieties and fears.” R. 143. She asserts that this

statement is consistent with her hearing testimony and does not

support the ALJ’s finding that her testimony is not credible.

Herring maintains that it is clear from the evidence that she has

 

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bipolar disorder, depression, mood swings, anxieties, and fears

that limit her functioning. She also complains that the ALJ failed

to address her mother’s testimony concerning caring for Herring’s

medications, which she maintains bolsters her credibility. 

Finally, Herring argues that the ALJ did not specify the

degree of credibility (if any) that he accorded her testimony, and

there is no evidence that supports the finding that she is not

wholly credible. 

B

The court concludes that Herring has failed to establish

reversible error.

As a threshold matter, the court must place in their proper

context Herring’s arguments that are based on the specific ALJ

finding that she quotes in her motion. The finding that Herring

challenges begins with this statement: “[o]ne strong indication of

the credibility of an individual’s statements is their consistency,

both internally and with other information in the case record[.]”

R. 15. This a direct quotation of a provision of SSR 96-7p.

Viewed in tandem with the text of SSR 96-7p, it is apparent that,

at this point in his decision, the ALJ was addressing the subject

of “consistency,” which is one of the “additional guidelines for

the adjudicator to consider when evaluating the credibility of an

individual’s statements.” SSR 96-7p, 1996 WL 374186, at *5. This

is not, however, the ALJ’s only finding concerning Herring’s

 

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2Inexplicably, the Commissioner responds to Herring’s first

argument by discussing why it is within the ALJ’s province to

assess whether complaints of pain are credible. See D. Br. at 4.

As Herring points out in reply, however, she “is not alleging pain,

but rather a mental impairment as the cause of her disability.” P.

Rep. Br. at 2. The court finds it necessary to emphasize anew the

importance of the Commissioner’s responding to the arguments the

plaintiff actually raises in her brief, see Frames ex rel. Rollins

v. Barnhart, No. 3:03-CV-0924-D, slip op. at 7-9 (N.D. Tex. June

23), appeal docketed, No. 04-11028 (5th Cir. Aug. 30, 2004), rather

than, as here, addressing an assertion that is not made. 

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credibility. These findings begin at page 4 of his decision, R.

14, and continue through page 5, R. 15. The ALJ’s “consistency”

finding is simply one component of a broader discussion of his

assessment of her credibility.2 

Nor is Herring correct in contending that the ALJ failed to

state his reasons, as required by SSR 96-7p. SSR 96-7p provides,

in relevant part, that 

[t]he determination or decision must contain

specific reasons for the finding on

credibility, supported by the evidence in the

case record, and must be sufficiently specific

to make clear to the individual and to any

subsequent reviewers the weight the

adjudicator gave to the individual’s

statements and the reasons for that weight. 

SSR 96-7p, 1996 WL 374186, at *2. The ALJ’s specific reasons are

found at pages 4 and 5 of his decision. See R. 14-15. After

considering her testimony and that of her mother, he found that she

had shown “the existence of an underlying medically determinable

impairment that could reasonably be expected to produce some

functional limitations.” R. 15. But he also found from the record

 

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that she did “not have to be entirely free of symptoms to have the

[RFC] to engage in substantial gainful activity[,]” that “[t]he

record shows that [she] engages in a wide range level of daily

activities[,]” and that “[h]er medication is shown to be effective

when [she] is compliant with her treatment program.” R. 15. He

found that her “symptoms have no substantial [e]ffect on her

ability to work beyond the functional limitations and restrictions

indicated by the medical evidence[,]” and that her “nonexertional

capabilities are compromised, but not to the degree alleged (i.e.,

an inability to work in any capacity).” The ALJ found further that

her testimony was not consistent with the medical evidence that

shows that her mental impairments have stabilized and that

demonstrates substantially fewer limitations than those to which

she and her mother testified. Id. The ALJ was not required, as

Herring contends, to specify the degree of credibility that he

accorded her testimony. 

The remaining arguments that Herring advances all essentially

present the same contention: that the ALJ’s credibility finding is

not supported by substantial evidence because the medical evidence

is consistent with, and no medical evidence contradicts, her

testimony. Assuming arguendo that Herring can focus on one

component of the ALJ’s broader credibility findings and attempt to

establish reversible error, the court holds that she has not. 

Credibility determinations are generally the province of the

 

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ALJ, and his credibility evaluations are entitled to deference.

See Carrier v. Sullivan, 944 F.2d 243, 244 (5th Cir. 1991).

Substantial evidence “is more than a mere scintilla, and less than

a preponderance.” Spellman, 1 F.3d at 360. To find no substantial

evidence, this court “must conclude that there is a ‘conspicuous

absence of credible choices’ or ‘no contrary medical evidence.’”

Dellolio, 705 F.2d at 125. The court holds that the ALJ’s findings

concerning Herring’s credibility are supported by substantial

evidence that she has some functional limitations, but still

retains the RFC to engage in substantial gainful activity; her

medication is effective when she complies with her treatment

program; her mental impairment has stabilized; and her daily

activities, as reported in November 2002, are not limited to the

degree to which she and her mother testified. Herring refused any

medications during the period of her treatment in July 2002, R. 126

(twice noting that “she refused meds”), but a progress note dated

July 15, 2002 from Cecile Soliven, M.D. recounts that Herring

“report[ed] good response to current medication.” R. 156. In

November 2002 Dr. Wahby reported that, on a daily basis, Herring

watches television, showers, cooks, and does laundry. R. 142. She

likes to read, telephone friends, go shopping, and exercise. Her

sleep pattern is normal, and she likes music, drawing, crochet, and

painting. She also helps her mother around the house. Although

she sometimes leaves the stove on, this is because she gets

 

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preoccupied and has difficulty concentrating. Id. Dr. Wahby

reported that Herring was oriented times three, did not express

delusions, denied having hallucinations now that she used her

medications, and was able to perform satisfactorily on standard

mental exercises. Id. Michael H. Brophy, M.D., a treating

physician, noted on April 23, 2003 that Herring “has done pretty

well” on her medications. R. 115. This evidence is more than a

scintilla and thus constitutes substantial evidence.

Accordingly, the court holds that Herring has failed to

demonstrate that the Commissioner’s decision should be reversed on

the first ground presented.

IV

Herring contends second that the ALJ’s failure to give

controlling weight to the medical evidence from her treating

physician is not supported by substantial evidence. 

A

Herring maintains that the ALJ failed to assign the amount of

weight to any of her medical records; he did not refer to or

mention her medical records in his decision, except for Exhibit 7F

(Dr. Wahby’s consultative examination report); it is unclear what

weight the ALJ gave to any medical reports in the record, and it

must be assumed that he did not give controlling weight to her

treating physician, Dr. Brophy; had controlling weight been given

to the treating physician, a finding of disabled would have been

 

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3

Herring does not base a claim of error on the ALJ’s failure

to address the six factors under § 404.1527(d). Such an assertion,

however, would have been misplaced, at least for the reason that

Herring has not shown that the ALJ rejected or gave little weight

to Dr. Brophy’s opinion. See Murphy v. Barnhart, No.

3:02-CV-2741-D, slip op. at 2 (N.D. Tex. Feb. 9, 2004) (Fitzwater,

J.) (“Under [Newton v. Apfel, 209 F.3d 448 (5th Cir. 2000),] the

ALJ ‘is required to consider each of the § 404.1527(d) factors when

the ALJ intends to reject or give little weight to a treating

specialist’s opinion[,]’” (quoting Newton, 209 F.3d at 455)

(emphasis omitted)). 

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entered; based on the factors specified in 20 C.F.R.

§ 404.1527(d),3 controlling weight should have been given to the

medical evidence and medical opinions of Dr. Brophy and substantial

weight should be given to the medical evidence from her treatment

in two hospitals; the ALJ is required to explain the weight given

or rejection of a treating physician’s medical opinion and present

good cause for not giving considerable weight to the opinion of a

treating physician, but he did not provide an explanation for his

failure to give controlling weight, and there are no good grounds

for him not to have given controlling weight to the treating

physician’s records and medical opinions; and the ALJ erred as a

matter of law in failing to set out the weight he gave to the

medical evidence and to explain his failure to give considerable

weight to the treating physician, and there is no substantial

evidence to support a finding that her treating physician should

not be given controlling weight.

 

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B

The court rejects Herring’s arguments. First, Herring does

not identify in her motion the opinion of Dr. Brophy that she

contends the ALJ should have, but did not, give controlling weight.

Nor does she explain how the unidentified opinion supports her

claim that she is disabled. Accordingly, there is no indication in

the ALJ’s decision that he did not in fact give the opinion

controlling weight. Although Herring argues that she has bipolar

disorder, depression, mood swings, anxieties, and fears that limit

her functioning, the ALJ explicitly recognized that her bipolar

disorder is “severe” (although not sufficiently so to meet or equal

a listing), R. 14, so it is doubtful that this is Herring’s basis

for contending that the ALJ rejected Dr. Brophy’s opinion.

Otherwise, she simply advances the conclusory assertion——without

specifying the medical opinion on which she relies——that “[h]ad

controlling weight been given to the treating physician[ ], a

finding of disabled would have been entered.” P. Mot. at 5. She

has not established reversible error on this basis. See, e.g.,

Caldwell v. Barnhart, No. 3:04-CV-2546-D, slip op. at 16 (N.D. Tex.

Aug. 17, 2005) (Fitzwater, J.) (“Because [the plaintiff] has not

demonstrated that [the treating physician’s] opinion regarding his

ability to sit for a maximum of two hours is inconsistent with the

ALJ’s findings, he has not shown that he was prejudiced by the

ALJ’s rejection of this opinion.”).

 

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4Although it is not clear that Herring intends to cite Myers

v. Apfel, 238 F.3d 617 (5th Cir. 2001) (per curiam), in support of

this premise, see P. Mot. at 6, the court notes that Myers

addressed, in pertinent part, the need for a function-by-function

analysis of a claimant’s functional limitations. Myers does not

make the more detailed determination of what evidence and analysis

must be narratively presented in the decision itself.

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Second, Herring has failed to cite in her motion any authority

that requires an ALJ to explain the weight given to a treating

physician’s opinion when, as here, there is no indication that the

ALJ declined to give the opinion controlling weight. The Fifth

Circuit has rejected a rule requiring the ALJ to “articulate

specifically the evidence that supported his decision and discuss

the evidence that was rejected.” Falco v. Shalala, 27 F.3d 160,

163 (5th Cir. 1994).4

Third, assuming the ALJ was obligated to provide such an

explanation, Fifth Circuit jurisprudence makes clear that the ALJ

may give less weight or even no weight to a treating physician’s

opinion for good cause. Statements that may be disregarded for

good cause include those that are “so brief and conclusory that

[they lack] persuasive weight, [are] not supported by medically

acceptable clinical laboratory diagnostic techniques, or [are]

otherwise unsupported by the evidence.” Scott v. Heckler, 770 F.2d

482, 485 (5th Cir. 1985) (citations omitted). Because Herring has

not identified the opinion of Dr. Brophy that she says should have

been given considerable or controlling weight, the court cannot

assess whether it is so brief or conclusory that the ALJ could have

 

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disregarded it on that basis, assuming, of course, that he actually

rejected Dr. Brophy’s opinion. 

Fourth, because Herring has not identified Dr. Brophy’s

opinion, the court cannot ascertain whether any error by the ALJ in

the procedure he followed caused her prejudice. See Shave v.

Apfel, 238 F.3d 592, 597 (5th Cir. 2001) (concluding that SSA’s

failure to follow its own rules is not basis for relief from ALJ's

decision unless claimant can show prejudice). 

The court holds that Herring has failed to demonstrate

reversible error on this basis. 

 * * *

For the reasons set forth, Herring has failed to establish

that the ALJ committed reversible error. The decision of the

Commissioner is therefore AFFIRMED.

September 7, 2005.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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