IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JO ELLA HUGHES, §

 §

Plaintiff, §

 § Civil Action No. 3:06-CV-0080-D

VS. §

 §

JO ANNE B. BARNHART, §

COMMISSIONER OF §

SOCIAL SECURITY, §

 §

Defendant. §

MEMORANDUM OPINION 

Jo Ella Hughes (“Hughes”) 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

income benefits under title II of the Act for the closed period

between July 30, 2000 to August 31, 2002. For the reasons that

follow, the Commissioner’s decision is AFFIRMED.

I

Hughes was born on December 8, 1954, is a high school

graduate, and has past work experience as a regional sales manager,

marketing director, and real estate agent. She applied for

disability income benefits in September 2000, alleging that she

became disabled on July 30, 2000 due to lupus, rheumatoid

arthritis, and depression (the “first application”). The

Commissioner denied her application initially and on

reconsideration. Pursuant to Hughes’s request for a hearing before

 

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1The ALJ states that the date of second application is

September 18, 2002, and the Appeals Council states that it is

October 28, 2002.

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an Administrative Law Judge (“ALJ”), the ALJ held a hearing on

March 20, 2002. The ALJ issued an opinion on August 30, 2002,

applying the required five-step sequential inquiry and concluding

in a written decision that Hughes was not disabled. The ALJ found

at step four that Hughes could perform the essential job functions

of a regional sales manager. On October 1, 2002 Hughes sought

review of that decision. 

Contemporaneously, Hughes filed a new application for

disability income benefits in September or October 2002,1

 again

alleging that she became disabled on July 30, 2000 (the “second

application”). On February 18, 2003 the Texas Disability

Determination Service (“TDDS”) granted her second application and

determined that she had been disabled since August 31, 2002.

Hughes advised the Appeals Council, which was then considering her

appeal from the denial of her first application, of her success on

her second application. The Appeals Council affirmed the TDDS

finding on her second application on May 28, 2004. It also vacated

the decision of the ALJ on her first application and remanded for

a determination on the issue of Hughes’s disability before August

31, 2002. 

On December 9, 2004 and February 9, 2005, the ALJ assigned to

Hughes’s first application conducted a hearing at which Hughes was

 

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represented by counsel. On May 13, 2005 the ALJ applied the fivestep sequential inquiry and concluded in a written decision that

Hughes was not disabled for the closed period between July 30, 2000

and August 31, 2002. He found at step two that Hughes had severe

physical impairments, including inflammatory syndromes, chronic

fatigue secondary to a ruptured silicone breast implant, statuspost explantation with featured rheumatoid arthritis, lupus, and

fibromyalgia. The ALJ also found that she had severe mental

impairments, including major depressive and generalized anxiety

disorders. At step three, he found that her impairments were 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.

At step four, he found that she retained the residual functional

capacity (“RFC”) to “perform a full range of sedentary light

duties.” He also found that she had a related mental

limitation——that “she could understand, remember and carry out only

simple job instructions and tasks.” At step five, in which the

burden was shifted to the Commissioner, the ALJ observed that he

was precluded from finding that she was not disabled by rote

application of the Medical-Vocational Guidelines of Subpart P,

Appendix 2 because, although she could perform sedentary light

duties, she also had work-related mental limitations. Accordingly,

the ALJ posed a hypothetical question to the vocational expert

(“VE”): whether there were jobs in the national economy for a

 

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person with sedentary exertional capacity limitations who can

understand, remember, and carry out only simple job instructions

and tasks. Relying on the VE’s testimony, the ALJ found that,

because there were significant jobs existing in the national

economy that she could have performed in the closed period, Hughes

was not disabled.

On December 16, 2005 the Appeals Council declined to review

the ALJ’s decision on remand. The ALJ’s May 2005 decision thus

became the final decision of the Commissioner.

Hughes seeks judicial review of the Commissioner’s denial of

her application for disability income benefits for the closed

period between July 30, 2000 and August 31, 2002. She contends

principally that the Commissioner’s decision that she retained the

RFC to perform a full range of sedentary work is not supported by

substantial evidence because she had serious reaching and

manipulative limitations. She also posits that the decision is not

supported by substantial evidence because she could only work parttime, the ALJ erroneously determined that she was not credible, and

she had greater mental limitations than found by the ALJ.

II

The 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

 

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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

‘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) (internal quotation

marks omitted)). Even if the court should determine that the

 

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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 fewer

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

inquiry. Leggett, 67 F.3d at 563; Martinez, 64 F.3d at 173-74; 20

C.F.R. § 416.920(a)(4). 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. § 416.920(a)(4).

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

 

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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). 

 “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 he 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

A

Hughes first contends that the ALJ erred at step four in

determining that she could perform a full range of sedentary work,

because he failed to include her serious reaching, handling, and

fingering limitations. Citing Newton v. Apfel, 209 F.3d 448 (5th

Cir. 2002), she argues that the ALJ erred in rejecting the opinions

of her treating family physician and rheumatologist about reaching

 

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and manipulative limitations. She notes that these opinions were

supported by a non-examining physician. Conversely, she contends

that the opinions of an examining physician and a non-examining

psychiatrist were not substantial evidence that she did not have

specific reaching, grasping, or fingering limitations. She asserts

that this error was harmful because, given her serious reaching and

handling limitations, there were no significant jobs existing in

the national economy that she could have performed in the closed

period, and that she was therefore disabled. 

B

The court will first consider her principal contention that

the ALJ erroneously rejected the opinions of her treating

physicians. Jim Anagnostis, M.D. (“Dr. Anagnostis”), Hughes’s

treating family physician since 1995, completed an original medical

source statement, in which he opined, inter alia, that since July

2000 Hughes could rarely or never reach, grasp, or finger with

either arm. Alan L. Brodsky, M.D. (“Dr. Brodsky”), Hughes’s

treating rheumatoligist since 1994, completed a medical evaluation

interrogatory form in which he opined, inter alia, that her

reaching function was affected by her impairments. The form is

dated April 13, 2002, and Dr. Brodsky stated that it was unknown

when her impairments prevented her from being able to work on a

continuing basis. Hughes subsequently submitted to the Appeals

Council an August 25, 2005 letter from Dr. Brodsky, in which he

 

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stated that the reaching limitations referred to the period 2000-

02.

The ALJ did not adopt the opinion of either Dr. Anagnostis or

Dr. Brodsky regarding Hughes’s residual functional limitations,

although he noted that both had treated her for over ten years. He

found that the limitations described by both physicians were

generally inconsistent. The ALJ stated that “Dr. Brodsky did not

provide an estimate of the date these limitations and restrictions

began.” R. 19. He observed that the forms were boilerplate, “were

not prepared for legitimate medical purposes of diagnoses or

treatment, no physician arranged a functional capacity evaluation

and neither psychiatrist referred to diagnostic test or clinical

observation as he completed the form.” Id. He went on to find

that Hughes “did not frequently seek care from Dr. Brodsky or Dr.

Anagnostis” during the closed period, and that “Dr. Anagnostis’s

notes show few examples of fibromyalgia-related symptoms.” Id.

Finally, the ALJ observed that Dr. Anagnostis “suggested

limitations and restrictions that even claimant did not endorse in

the closed period.” Id. 

C

1

“A treating physician’s opinion on the nature and severity of

a patient’s impairment will be given controlling weight if it is

‘well-supported by medically acceptable clinical and laboratory

 

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diagnostic techniques and is not inconsistent with . . . other

substantial evidence.’” Newton, 209 F.3d at 455 (ellipsis in

original) (quoting Martinez, 64 F.3d at 176). Nevertheless,

[e]ven though the opinion and diagnosis of a

treating physician should be afforded

considerable weight in determining disability,

the ALJ has sole responsibility for

determining a claimant’s disability status.

The ALJ is free to reject the opinion of any

physician when the evidence supports a

contrary conclusion. The treating physician’s

opinions are not conclusive. The opinions may

be assigned little or no weight when good

cause is shown. Good cause may permit an ALJ

to discount the weight of a treating physician

relative to other experts where the treating

physician’s evidence is conclusory, is

unsupported by medically acceptable clinical,

laboratory, or diagnostic techniques, or is

otherwise unsupported by the evidence. 

Newton, 209 F.3d at 455-56 (citations, quotation marks, and

brackets omitted). 

This court has also held that, absent a contradictory opinion

of another examining or treating physician, the ALJ must analyze a

treating physician’s opinion in light of six factors contained in

20 C.F.R. § 404.1527(d) before giving little or no weight to that

opinion. E.g., Parham v. Barnhart, No. 3:05-CV-1043-D, slip op. at

17-18 (N.D. Tex. Apr. 28, 2006) (Fitzwater, J.). Under 20 C.F.R.

§ 404.1527(d), the ALJ must consider the following six factors

(1) the physician’s length of treatment of the

claimant, (2) the physician’s frequency of

examination, (3) the nature and extent of the

treatment relationship, (4) the support of the

physician’s opinion afforded by the medical

evidence of record, (5) the consistency of the

 

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2

This case does not present the question whether an ALJ may

properly reject the treating physician’s opinion in light of a

contradictory examining physician’s opinion and ignore the six

factors under 20 C.F.R. § 404.1527. Here, the ALJ considered both

the factors and the opinion of an examining physician.

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opinion with the record as a whole; and (6)

the specialization of the treating physician.

Id. at 17 (quoting, inter alia, Newton, 209 F.3d at 456) (internal

quotation marks omitted). “Several federal courts have concluded

that an 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.” Newton, 209 F.3d at 456

(collecting cases). 

2

In rejecting the opinions of the treating physicians——Drs.

Anagnostis and Brodsky——the ALJ cited the controlling regulations

and rulings, including 20 C.F.R. § 404.1527 and Titles II and XVI:

Giving Controlling Weight to Treating Source Medical Opinions, 61

Fed. Reg. 34,490 (July 2, 1996) (“SSR 96-2p”), and also considered

the contradictory opinions of an examining physician and a nonexamining psychiatrist who had prior experience in internal

medicine and remained current in the field.2 Although the ALJ did

not explicitly state that he was considering each of the six

factors, he addressed each of them in rejecting their opinions.

First, he observed that both physicians had treated Hughes for

over ten years. Second, he concluded that Hughes “did not

 

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3The evidence reflects that Dr. Brodsky examined Hughes four

times between January 2001 and April 2002. The evidence also shows

that Dr. Anagnostis examined Hughes twice during the closed period,

in May 2001 and March 2002. 

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frequently seek care from Dr. Brodsky or Dr. Anagnostis in the

closed period.”3 Third, as to the nature and extent of the

treatment relationship, the ALJ considered the long-term

relationship between Hughes and both physicians. 

The ALJ focused his rejection of the treating physicians’

opinions on factors 4 and 5. As to factor 4, he noted that neither

physician “referred to [a] diagnostic test or clinical

observation.” R. 19. He also observed that, contrary to the

physician’s opinions, Dr. Brodsky’s June 2001 examination revealed

no joint swelling “and Dr. Anagnostis’ notes show few examples of

fibromyalgia-related symptoms.” Id.

As to factor 5, the ALJ found that the opinions of Dr. Brodsky

and Dr. Anagnostis were inconsistent with each other, with Hughes’s

characterization of her own limitations, and with the opinions of

two other physicians. For instance, Dr. Brodsky opined that Hughes

could only lift 10-15 pounds occasionally, stand or walk a total of

1-2 hours per day and continuously for 1⁄2 hour, and sit for a total

of 4 hours per day and continuously 1-2 hours. By contrast, Dr.

Anagnostis opined that she could rarely or never lift any weight,

stand or walk a total of 1 hour per day and continuously for fewer

than 15 minutes, and sit for a total of 1 hour per day continuously

 

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for fewer than 15 minutes. Moreover, Dr. Anagnostis opined that

Hughes could rarely or never reach, grasp, or finger with either

arm, whereas Dr. Brodsky concluded that her impairments affected

her ability to reach but not to finger or handle. 

The ALJ also observed that Dr. Anagnostis’s suggested

limitations and restrictions were inconsistent with Hughes’s own

assessment of her limitations. Hughes testified that she could not

lift or carry items over 20 pounds more than occasionally, whereas

Dr. Anagnostis opined that she could never or rarely lift any

weight. 

Furthermore, the ALJ found that the treating physicians’

opinions were inconsistent with the evaluation of an examining

physician, Sudhakar Rumalla, M.D. (“Dr. Rumalla”), who determined

that Hughes could “perform light work activities where she is not

involved in heavy lifting and prolonged walking.” Hughes contends

that Dr. Rumalla’s opinion is not inconsistent with the opinions of

her treating physicians because he did not offer a specific opinion

about her abilities to reach, grasp, and finger. Although Dr.

Rumalla did not expressly opine that Hughes had no reaching or

manipulative limitations, his ultimate conclusion that Hughes could

perform sedentary work did not include any other limitations on her

abilities. Accordingly, his conclusion was not consistent with the

opinions of her treating physicians that she had additional

reaching limitations. Moreover, in determining Hughes’s functional

 

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4This is not a case in which the ALJ relied solely on the

testimony of a non-examining psychiatrist to reject the testimony

of treating physicians who specialize in the relevant field of

medicine. The court therefore has no reason to disturb the

Commissioner’s decision on this basis. Cf., e.g., Myers v. Apfel,

238 F.3d 617, 621 (5th Cir. 2001) (per curiam) (“‘This is a case

where the ALJ summarily rejected the opinions of [Myers’s] treating

physician, based only on the testimony of a non-specialty medical

expert who had not examined the claimant.’” (quoting Newton, 209

F.3d at 458)); Mayo v. Barnhart, No. 3:03-CV-0652-D, slip op. at 12

(N.D. Tex. Apr. 21, 2004) (Fitzwater, J.) (vacating and remanding

where, inter alia, ALJ relied on opinion of examining doctor

physician who specialized in physical medicine and rehabilitation

to reject opinion of treating physician who specialized in

relevant medical speciality of psychiatry). 

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capacity, the ALJ not only considered Dr. Rumalla’s ultimate

conclusion but also his supporting observations that Hughes had

fair grip strength and normal upper extremity ranges of motion.

Finally, the ALJ found that the treating physicians’ opinions were

inconsistent with the opinion of the non-examining psychiatrist,

John Simonds, M.D. (“Dr. Simonds”), who concluded that Hughes was

capable of performing light work duties during the closed period.4

As to factor 6——the specialization of the treating

physicians——Hughes makes much of the fact that the ALJ mistakenly

referred to Dr. Anagnostis as a psychiatrist and to Dr. Brodsky as

a psychiatrist and a neurologist. At the outset of his opinion,

however, the ALJ correctly identified both treating physicians’

specialties, referring to Dr. Anagnostis as Hughes’s primary care

physician and to Dr. Brodsky as her rheumatologist. He thus

adequately accounted for the specializations of both physicians. 

In sum, unlike Newton, 209 F.3d at 458, this is not a case

 

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“where the ALJ summarily rejected the opinions of [Hughes’s]

treating physician[s], based only on the testimony of a nonspeciality medical expert who had not examined the claimant.”

Rather, in rejecting the opinions of Hughes’s treating physicians,

the ALJ comprehensively considered all six factors outlined in

§ 404.1527(d) and weighed the contradictory opinion of an examining

physician. 

D

Hughes folds her arguments about the ALJ’s failure to defer to

her treating physicians into her contention that the ALJ’s ultimate

conclusion is not supported by substantial evidence. Throughout

this section of her brief, she posits miscellaneous contentions

that the ALJ’s conclusion that she was able to do sedentary work

without reaching or manipulative limitations is not supported by

substantial evidence. For instance, she asserts that Dr. Rumalla

in fact found abnormalities related to upper extremities, e.g., her

grip was fair but not good, and that he did not consider the

combined impact of her impairments. She also contends that the

ALJ’s reliance on Dr. Simonds’s assessment of her functional

capacity limitations was erroneous because he is a child

psychiatrist. Finally, she contends that her reaching and

manipulative limitations were further supported by the opinion of

James A. Wright, M.D. (“Dr. Wright”), a non-examining, consultative

state agency physician. 

 

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These contentions amount to an argument that the ALJ

erroneously weighed the evidence in determining that she could

perform all sedentary work. This court, however, “may not reweigh

the evidence or try the issues de novo or substitute its judgment

for that of the [Commissioner].” Kane, 731 F.2d at 1219.

Moreover, the court has already concluded that there was sufficient

evidence in the record that contradicted the treating physicians’

opinions that Hughes had specific reaching limitations. See supra

at § III(C)(2). This same evidence constitutes substantial

evidence that supports the ALJ’s determination that Hughes did not

have particular reaching or manipulative limitations apart from her

general ability to only perform sedentary work. Accordingly, the

court holds that the ALJ’s conclusion that Hughes had the RFC to

perform sedentary work is supported by substantial evidence.

IV

The court will next consider the three arguments Hughes raises

at the end of her brief regarding part-time work, credibility, and

mental limitations.

A

Hughes labels her first argument as “Part-time work: Hughes is

clearly disabled at all relevant times.” She contends that the ALJ

erroneously evaluated various medical opinions, that she is clearly

disabled when those opinions are considered, and that the ALJ

erroneously evaluated her treating physicians’ opinions that she

 

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could not work full-time. She maintains that a claimant is

disabled if she can only work part-time, and that substantial

evidence does not support the ALJ’s finding that she could not work

full-time. Finally, she urges that, on remand, the ALJ should

consider the treating physicians’ “part-time work opinions.”

The court rejects this contention because it merely repeats

arguments already made, i.e., that the ALJ erroneously concluded

that she could perform sedentary work. As to her statements

regarding part-time work, she does neither explain how they relate

to errors in the ALJ’s reasoning or conclusions nor identifies the

applicable standard of review. In fact, she does not make clear

what constitutes the treating physicians’ “part-time work

opinions.” Accordingly, the court finds that this argument lacks

merit.

B

Hughes next contends that substantial evidence does not

support the ALJ’s adverse credibility finding. She alleges that,

under 20 C.F.R. § 404.1529(c)(3)(i), the ALJ was required to

consider her daily activities, which he did not do. She urges that

the ALJ erroneously presumed that she was not credible. Finally,

she argues that the ALJ misstated the issue in finding that Hughes

was not credible because she was not so severely impaired as to

preclude her from performing all work activities. 

First, the ALJ specifically noted the governing regulation, 20

 

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C.F.R. § 404.1529, and stated that he had evaluated her daily

activities. Despite Hughes’s contention that she was totally

disabled, the ALJ observed that she had related that she drove four

times per week. She went to the store to pick up medications and

to shop for clothes, to dinner on weekends (spending 40 minutes to

one hour at restaurants), and to movies several times per year.

Accordingly, the court concludes that the ALJ not only recognized

the governing regulation but considered Hughes’s relevant daily

factors in weighing her credibility.

Second, the ALJ did not presume that Hughes was not credible;

rather, he described her testimony as “innately biased.” The court

discerns no reversible error in this use of adjectives to describe

the testimony of a social security claimant seeking benefits.

Moreover, the ALJ identified the applicable guidelines—— Titles II

and XVI: Evaluation of Symptoms in Disability Claims: Assessing the

Credibility of an Individual's Statements, 61 Fed. Reg. 34483-01

(July 2, 1996) (“SSR 96-7p”)——and described several inconsistent

statements Hughes made regarding the nature and extent of her

disability. The court thus concludes that the ALJ did not err in

concluding that she “impugned her credibility.”

Third, the ALJ did not find that Hughes was not credible for

the reason that she was not so severely impaired as to preclude the

performance of all work activities. Rather, he concluded that her

credibility had been “impugned” because some of her statements

 

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about her pain and exertional abilities were inconsistent with

prior statements she had made to physicians. Accordingly, the

court rejects her contentions that the ALJ erred with respect to

determinations regarding her credibility.

C

Finally, Hughes argues that the ALJ erred both in determining

her mental RFC and in the corresponding hypothetical posed to the

VE. Specifically, she alleges that the administrative record is

defective because it does not include the July 1, 2005 statement of

Puskoor Kumar, M.D. (“Dr. Kumar”), her treating psychiatrist. And

she urges that Dr. Kumar’s opinions submitted to the Appeals

Council demonstrated that the ALJ understated the severity of her

mental condition. She points to Dr. Kumar’s opinion that, “shortly

before she stopped treating with me [in early 2001], her ability to

focus or maintain attention was extremely deteriorated, so that she

was not even able to perform one to two step tasks at home during

certain times of the day.” P. Br. 23.

The administrative record is not defective. Hughes properly

submitted Dr. Kumar’s July 1, 2005 statement to the Appeals Council

and the Appeals Council considered it. The statement was

inadvertently omitted from the record submitted to this court.

Hughes attached the statement to her brief, and the Commissioner

does not object to this attachment. Accordingly, there is no error

in the administrative record that requires reversal.

 

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As to her contention that her mental limitations were greater

than those the ALJ found, she does not identify the applicable

legal standard. Generally, when a social security plaintiff “‘does

not otherwise identify the legal standard under which she seeks

review, the court . . . will address her arguments under the

settled principles that resolution of conflicting evidence is for

the Commissioner and that the court must affirm the Commissioner’s

findings if they are supported by substantial evidence.’” Parham,

No. 3:05-CV-1043-D, slip op. at 11 (alterations in original

omitted) (quoting LeCoq v. Barnhart, No. 3:04-CV-0825-D, slip op.

at 12 (N.D. Tex. Aug. 24, 2005) (Fitzwater, J.)). The Commissioner

points to ample evidence that supports the ALJ’s conclusion that

Hughes “could understand, remember and carry out only simple job

instructions and tasks.” The ALJ relied on the opinion of Dr.

Kumar and the opinions expressed by consulting physicians, Dr.

Simonds and Murray Skaggs, M.D. (“Dr. Skaggs”). The ALJ found that

although Hughes had severe depression and anxiety during the closed

period, she had not required neither psychiatric in-patient care or

assisted living services, nor frequent out-patient counseling; none

of her treating physicians referred her for psychiatric care after

July 1, 2001; and she had not sought additional counseling. He

further noted that she was neither taking anti-psychotic medication

nor was there any “indication of gross emotional irregularities,

cognitive limitations or social isolation nor is there a confirmed

 

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5Hughes does not base a claim of error on the ALJ’s failure to

address the six factors under § 404.1527(d) in rejecting the

opinion of her treating physician, Dr. Kumar. Moreover, such an

argument would be misplaced where the ALJ did not reject Dr.

Kumar’s diagnosis. See R. 20 (“I have concluded that the

depression and anxiety were severe in the closed period . . . .”).

- 21 -

history of bizarre, aberrant or harmful behavior.” 

Accordingly, the court holds that the ALJ’s conclusion about

her mental capabilities is supported by substantial evidence, and

it rejects her final contention.5

* * *

The Commissioner’s decision is AFFIRMED.

August 22, 2006.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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