Opinion
Civil Action No. 3:17-CV-3422-M-BH
02-26-2019
ERICA W., Plaintiff, v. NANCY A. BERRYHILL, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.
Referred to U.S. Magistrate Judge
FINDINGS , CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
By Special Order No . 3-251 , this social security appeal was automatically referred for full case management. Based on the relevant filings, evidence, and applicable law, the Commissioner's decision should be REVERSED, and the case should be REMANDED for further proceedings.
I. BACKGROUND
The background information comes from the transcript of the administrative proceedings, which is designated as "R."
Erica W. (Plaintiff) seeks judicial review of a final decision by the Commissioner of Social Security (Commissioner) denying her claims for disability insurance benefits (DIB) and supplemental security income (SSI) under Titles II and XVI of the Social Security Act. (doc. 1.) A. Procedural History
On December 11, 2014, Plaintiff applied for DIB and SSI, alleging disability beginning on November 7, 2014. (R. at 182, 189.) Her claims were denied on January 23, 2015, and upon reconsideration on March 23, 2015. (R. at 87-102, 105-22.) On April 13, 2015, she requested a hearing before an Administrative Law Judge (ALJ). (R. at 139-40.) She appeared and testified at a hearing on August 25, 2016. (R. at 39-86.) On November 2, 2016, the ALJ issued a decision finding that she was not disabled and denying her claim for benefits. (R. at 15-38.)
Plaintiff timely appealed the ALJ's decision to the Appeals Council on November 22, 2016. (R. at 181.) The Appeals Council denied her request for review on October 17, 2017. (R. at 1-6.) Plaintiff timely appealed the Commissioner's decision under 42 U.S.C. § 405(g). (See doc. 1.) B. Factual History
1. Age, Education, and Work Experience
Plaintiff was born on September 9, 1972, and was 43 years old at the time of the hearing. (R. at 31, 41.) She had at least a high school education and could communicate in English. (R. at 31.) She had past relevant work experience as a certified nurse's aide (CNA), general salesperson, childcare provider, hostess, unit clerk, slot key machines attendant, and clerical worker. (Id.)
2. Medical Evidence
On January 6, 2011, Plaintiff presented to Parkland Hospital (Parkland) complaining of chest pains. (R. at 826.) The treating physician noted that she had a history of cervical and ovarian cancer as well as a partial hysterectomy. (R. at 826.) Plaintiff submitted to a blood screening, which came back positive for human immunodeficiency virus (HIV). (R. at 828.) She received counseling, and an HIV care plan was established to monitor and treat the disease. (R. at 867.) She was prescribed Atripla, which was successful at suppressing the disease. (R. at 884.) She would return to Parkland multiple times between January 24, 2011 and September 23, 2016, for routine HIV testing and treatment. (R. at 824-1164; 1179-1413.) Throughout this period, her CD4 count remained within the reference range, with no detectable viral load. (Id.)
The CD4 count measures how many white blood cells, known as T-cells, are in a patient's blood. See Jonathan E. Kaplan, MD, How CD4 Counts Help Treat HIV and AIDS, WEBMD MEDICAL REFERENCE (June 7, 2017), https://www.webmd.com/hiv-aids/cd4-count-what-does-it-mean.
On June 13, 2011, Plaintiff presented to Parkland complaining of chronic pelvic pain. (R. at 892.) The resident physician noted that Plaintiff was seen in December 2010 with a concern for interstitial cystitis (IC) and was prescribed Cystex and an IC diet. (Id.) She reported that she had been following the diet, which eliminated bladder irritants, but did not try Cystex. (Id.) She was also prescribed Gabapentin, but discontinued the medication because she did not experience pain relief. (Id.) She reported experiencing "nocturia and some urinary urgency" and pain that was "constant, intermittently worsening, and overall unchanged" since December 2010. (Id.) She was assessed with "possible IC, not improving" and was referred to a urogynecologist for evaluation. (Id.) The attending physician agreed with the assessment and recommendation. (Id.)
"IC is a complex genitourinary disorder involving recurring pain or discomfort in the bladder and pelvic region." See Soc. Sec. Ruling, Ssr 15-1p; Titles II & Xvi: Evaluating Cases Involving Interstitial Cystitis (Ic), SSR 15-1P (S.S.A. Mar. 18, 2015).
Nocturia is excessive nighttime urination. See Neil S. Lava, MD, What is nocturia?, WEBMD MEDICAL REFERENCE (April 14, 2018), www.webmd.com/multiple-sclerosis/qa/what-is-nocturia.
On May 10, 2013, Plaintiff went to Southwest Urology Associates and was seen by Dr. Roy Carrington Mason, DO, for urological evaluation of pelvic pain. (R. at 635.) Plaintiff described her pelvic pain as chronic, throbbing, and a 10 out of 10 in severity. (Id.) On May 21, 2013, she returned to Dr. Mason and underwent a cystoscopy and hydrodistention. (R. at 639.) She was reported as having "chronic frequency, urgency and bladder pain relieved with emptying." (Id.) Her post-operative diagnosis was IC and she was also found to have an atrophic hyperemic bladder. (R. at 529, 639.)
On June 5, 2013, she visited Dr. Mason for a routine post-operative follow-up visit. (R. at 583.) She reported feeling better since the surgery, "but not back to normal." (Id.) She continued experiencing continual frequency, urgency, and bladder discomfort. (Id.) She was instructed to return if her symptoms worsened or continued to persist. (R. at 586.)
On June 12, 2013, Plaintiff returned to Dr. Mason complaining that her cystitis was "getting worse." (R. at 587.) She described experiencing severe bladder discomfort for the past three weeks. (Id.) She noted that working made her have more discomfort, and she would experience more pain the more she was on her feet. (Id.) Dr. Mason referred her to a specialist for pain management. (Id.)
On July 16, 2013, Plaintiff presented to Dr. Lloyd Aaron, MD, for pain management. (R. at 529.) Dr. Lloyd noted that she had been experiencing pain for over a year, "which was defined as sharp stabbing and throbbing in nature and in the perineal area associated with increased urinary frequency and being upright as well as during sexual intercourse." (Id.) She was prescribed Topamax for the neuropathic component of pain, Flexeril for the regional muscular spasm, and Celebrex as a direct anti-inflammatory. (R. at 532-33.)
On August 27, 2013, Plaintiff visited Parkland to have her disability paperwork completed. (R. at 970-71.) She reported that she was receiving treatment from a urologist. (Id.) She also stated that she did not "feel safe in her home because her ex-husband [was] threatening her." (Id.) She was escorted by a police officer to the hospital's psychiatric emergency room. (Id.) She was seen by attending psychiatrist Dr. Rebecca Hanna, MD, who noted that she was referred for suicidal ideation. (Id.) Plaintiff reported decreased sleep due to ruminating and decreased energy due to medications. (Id.) She had been "a little sad" due to current stressors and would not want to get out of bed. (Id.) She denied any thoughts of self-harm or wishing death. (Id.) She also denied experiencing "change in interest, thoughts of guilt, change in concentration, agitation" (R. at 982.)
Dr. Hanna observed many psychosocial stressors, including the financial difficulties facing her and her mother, the separation from her husband who was verbally abusive, and the incarceration of her pastor, who she considered family. (R. at 982.) She also reported being molested at age three. (Id.) She denied ever using psychiatric medication. (Id.) Plaintiff reported that she only attempted suicide once in 2001 and was hospitalized after overdosing on Tylenol. (Id.) During that incident, she had felt stress because of tensions between her husband and her family, but voluntarily stayed for psychiatric evaluation for two days. (Id.) Dr. Hana diagnosed her with depression. (Id.) Plaintiff stated that she would seek additional psychiatric help by taking advantage of six free counseling sessions that were available to her. (Id.)
On August 28, 2013, Plaintiff returned to Dr. Mason for a post-surgical follow-up. (R. at 774) She complained that she continued experiencing bladder pain and had difficulty emptying her bladder. (Id.) She reported that her symptoms had been fluctuating on and off for several years. (Id.) She sought pain management care, but stated that it did not help. (Id.) She reported that a second referral to another pain physician could not be carried out for insurance reasons. (Id.) When examined by Dr. Mason, Plaintiff denied experiencing memory difficulties or depression. (Id.) She was observed as having a normal mood with an appropriate effect. (R. at 775.) Dr. Mason noted that she obtained "modest relief" with bladder instillation, but would experience more intense flairs despite being on Elmiron. (Id.) Plaintiff reported having "worsening incomplete emptying." (Id.) She also reported missing more work as a result of her symptoms. (Id.) Dr. Mason prescribed her an Interstim trial, but Plaintiff cancelled the prescription because of its cost. (R. at 777.)
On September 20, 2013, Plaintiff telephoned Dr. Mason's office regarding her disability paperwork. (R. at 778.) She told a nurse that Dr. Mason considered her to be partially disabled and would like something from him showing that she was "partially disabled with the interstitial cystitis." (Id.) Plaintiff was instructed to see "a physical medicine physician to assess her degree of disability." (Id.)
On October 29, 2013, Plaintiff presented to Dr. Hima Doppalapudi, MD, at Methodist Rehabilitation Clinic for pain management. (R. at 822.) She complained of experiencing pain in the pelvic area and "constant stabbing" pain in the bladder "irrelevant of pressure." (Id.) She rated the intensity of her current pain as an 8 out of 10. (Id.) She appeared "very depressed and tearful" and stated that she was "upset about her condition and not able to do anything normally in life." (Id.) She reported seeing a psychologist and being on antidepressants. (Id.) Dr. Doppalapudi assessed her with chronic pain syndrome from endometriosis and IC. (Id.)
Endometriosis is a painful disorder in women where the tissue lining the uterus grows in other areas of the body including on the ovaries, fallopian tubes, and bladder. See Mayo Clinic Staff, Endometriosis, MAYO CLINIC, (July 24, 2018), https://www.mayoclinic.org/diseases-conditions/endometriosis/symptoms-causes/syc-20354656.
On November 7, 2013, Plaintiff presented to Dr. Sunjay Wagle, B.Sc, D.C., at Texas Rehabilitation Solutions, for a functional capacity evaluation (FCE). (R. at 781-89.) He noted that she "gave reliable efforts that were not diminished or biased by disability behaviors or active choice to portray efforts that are less than true." (R. at 781.) She was observed as exhibiting extreme deficits with "carrying, walking, reaching, squatting, and repetitive bending." (Id.) Based on her FCE, he believed that Plaintiff would be able to work at the sedentary physical demand level for activity above and below the waist. (Id.)
On December 10, 2013, Plaintiff returned to Dr. Doppalapudi for a follow-up visit regarding her FCE. (R. at 821.) She stated that her pain medication was working and her pain intensity level improved to a 3 out of 10. (Id.) She was still observed as being depressed and tearful, and she reported experiencing insomnia on and off. (Id.)
Plaintiff had four additional office visits with Dr. Doppalapudi between March 4, 2014, and October 7, 2014. (R. at 813-20.) Throughout this period, she complained of constant stabbing in the bladder irrelevant of pressure. (Id.) Her depression was referenced at each visit, and "adjustment disorder with depressed mood" was added to her diagnoses. (Id.) She reported taking antidepressants, but felt that she had been gaining a lot of weight since starting the medication. (Id.) On October 7, 2014, Dr. Doppalapudi signed a Department of Housing and Urban Development (HUD) "Verification of Disability" form, opining that Plaintiff's current medical condition satisfied the definition of being "functionally disabled," and she was properly considered as "disabled per HUD regulations." (R. at 417.)
On November 10, 2014, Plaintiff presented to obstetrician-gynecologist (OB-GYN) Dr. Kecia Foxworth, MD, for a diagnostic laparoscopy. (R. at 456.) Dr. Foxworth noted a longstanding history of chronic pelvic pain despite numerous conservative measures to control the pain. (Id.) She further noted Plaintiff's significant history of endometriosis and IC. (Id.) During the surgical procedure, Dr. Foxworth observed "implants of endometriosis and scarring noted in the [] left pelvic side wall" that was "moderate to severe in nature." (R. at 460.) She also observed "small endometrial implants noted on the [] right pelvic side wall as well as the anterior and posterior cul-de-sac, including small implants noted over the bladder." (Id.) Her post-operative diagnoses was chronic pelvic pain and endometriosis. (R. at 456.)
Dr. Foxworth also wrote and signed a letter dated December 17, 2014, stating the following:
[Plaintiff] has been under my care since 2012. [Plaintiff] Wolfe has a long standing history of chronic pelvic pain that has worsened over the last year. Despite numerous therapies including surgery, her pain has not improved. Her chronic pain prevents her from working. She is totally debilitated by this pain and unable to perform her daily activities and maintain employment.(R. at 756.)
After the diagnostic laparoscopy, on December 2, 2014, Plaintiff returned to Dr. Doppalapudi for pain management. (R. at 811.) Dr. Doppalapudi noted her new diagnosis of IC. (Id.) Plaintiff reported that her OB-GYN recommended that she be off work and "suggested disability." (Id.) She rated the intensity of her current pain level as a 4 out of 10. (Id.) She also reported a recent "exacerbation" of cystitis. (Id.) She stated that she had seen a psychologist, but the increase in antidepressants was not helping. (Id.)
On December 22, 2014, Plaintiff completed a function report for the Social Security Administration (SSA). (R. at 233.) She stated that could not walk, stand, or sit for a long duration because of extensive pain, and would experience sharp pains in the bottom of her stomach. (R. at 233.) It would hurt to urinate and she would not want to do anything but lay in bed because of the pain. (R. at 234.) She would be able to follow written and verbal instructions and would get along with authority figures. (R. at 238-39.) She could handle stress, but would need to take an antidepressant because of her pain and "not being able to do anything." (R. at 239.) She reported taking 20mg of Citalpram for her depression. (R. at 240.)
Plaintiff visited Dr. Doppalapudi three more times between January 20, 2015 and July 7, 2015, for pain management. (R. at 805-10.) Throughout this period, she continued complaining of constant stabbing in the bladder irrelevant of pressure. (Id.) Though initially well-managed, her pain had been intensifying since her November 10, 2014 laproscopic exploration. (Id.) During her visit on July 7, 2015, she rated the intensity of her current pain level as a 9 out of 10. (R. at 805.) She stated she was unable to walk or sit. (Id.) She was observed as being "very tearful and upset about the whole process." (Id.) She complained of being very depressed, but denied any suicidal ideation. (Id.) She was prescribed MS Contin for pelvic pain and instructed to continue taking Norco. (Id.) She was also referred to a psychiatrist. (R. at 806.)
On February 27, 2015, Plaintiff completed a second function report for the SSA. (R. at 256.) She stated that she experienced severe pain "all day everyday" due to her endometriosis and IC. (Id.) She stated that she would get depressed because she was unable to work or do anything because of her pain. (R. at 258-61). She stated that she would not have any problems following instructions or getting along with authority figures. (R. at 261-62.) She reported that she cried a lot when things would "get unbareable(sic)." (R. at 262.)
On August 14, 2015, Dr. Mason filled out a questionnaire for Plaintiff titled "Interstitial Cystitis Medical Source Statement." (R. 1167-69.) Dr. Mason stated that he had seen Plaintiff between May 1, 2013, and September 3, 2014, and had assessed her with IC. (R. at 1166.) He observed suprapubic tenderness and "glomerulations (pinpoint bleeding caused by recurrent irritation on the bladder wall)" after conducting a cystoscopy with hydrodistention. (Id.) He noted Plaintiff's symptoms of urinary frequency, bladder/pelvic pain, and depression, but would not attest to the parameters of her pain, as it was "subjective." (Id.) Dr. Mason reported that Plaintiff did not respond to Elmiron on hydrodistention, nor to an Interstim trial. (R. at 1167.) He opined that Plaintiff suffered from urinary frequency and would need to urinate on an hourly basis. (Id.) Dr. Mason was unable to assess Plaintiff's "functional limitations" in a "competitive work situation" or the percentage of a typical workday she would be "off task" due to her symptoms and medication side effects. (R. 1167-68.) He was also uncertain as to Plaintiff's prognosis, noting that he had not seen her in approximately a year. (R. at 1167.) Nevertheless, Dr. Mason opined that Plaintiff would have to take unscheduled restroom breaks during the workday, and her job would need to provide her with ready access to a restroom. (R. at 1168.) Because Plaintiff's depression and pain symptoms would worsen with stress, Dr. Mason concluded that she would only be capable of handling "low stress jobs." (R. at 1169.)
On September 30, 2015, Plaintiff presented to Parkland complaining of pelvic pain. (R. at 1182.) She reported experiencing worsening suprapubic pain that felt "like giving birth" and radiated down both legs. (R. at 1185.) The pain would worsen when she would sit or stand for a long period of time. (R. at 1183.) She reported voiding 20 to 24 times per day, but did not experience pain or burning when urinating. (R. at 1186.) The treating physician noted that she rocked back and forth in her chair and "got tearful several times throughout the interview." (R. at 1186-87.)
On October 6, 2015, Plaintiff presented to the gynecology clinic at Parkland for evaluation of her chronic pelvic pain. (R. at 1199.) She reported "urinary complaints, voiding 18-25x/day and countless times at night." (Id.) She stated that voiding would be preceded by a strong urge and cramping suprapubic pain, which would be relieved by voiding. (Id.) She denied suicidal ideation, but noted that she was "very frustrated by pelvic pain." (Id.) She reported that she "had to quit working due to pain and [her] lack of [a] job [was a] significant source of stress." (Id.)
On October 28, 2015, Plaintiff returned to Parkland for evaluation and management of her HIV infection. (R. at 1208.) She complained of worsening pain in her abdomen. (Id.) She was prescribed Hydrocodone for her increased pain. (R. at 1211.)
On November 25, 2015, Plaintiff presented to Parkland and met with a nurse practitioner to complete a disability form. (R. at 1215.) She stated that her private physician completed a similar disability form last year but was unable to complete a new form because she had not been seen by the physician in over a year. (Id.) The nurse practitioner told Plaintiff that her medical history did not match with the disability guidelines indicated on the form. (Id.) Plaintiff complained that her primary care physician lacked empathy towards her chronic pain and stated that she did not understand why she was only getting 120 Hydrocodone tablets a month for her pain. (Id.) She was advised to follow-up with her gynecologist regarding her chronic pelvic pain. (Id.)
On December 9, 2015, a CT scan of Plaintiff's pelvis and abdomen showed hepatic steatosis and hepatomegaly, but no abdominopelvic metastatic disease was identified. (R. at 1225.) A limited evaluation of the bladder revealed no obvious bladder abnormality. (Id.)
On January 11, 2016, Plaintiff presented to Parkland complaining of acute sinusitis and chronic pelvic pain. (R. at 1243-51.) She reported the pain as bilateral, constant, and that it would worsen with movement. (R. at 1245) She rated the intensity of her pain level as an 8 out of 10. (R. at 1246.) She reported that the pain was severely limiting her life and caused her difficulty sleeping, and that she was suffering from depression due to her chronic pain. (Id.) She was counseled that a bilateral salpingo-oophorectomy (BSO) procedure would be unlikely to improve her pelvic pain and potentially worsen the pain. (Id.) She also visited with a physical therapist and was provided a plan of care, including pelvic strengthening home exercises. (R. at 1248.)
On February 11, 2016, Plaintiff returned to Parkland for a routine HIV follow-up. (R. at 1254) Her CD4 count remained within the reference range, with no detectable viral load. (R. at 1255.) She reported being depressed due to chronic pain issues. (R. at 1258-59.) She stated that her disability lawyer arranged for her to see a psychiatrist. (Id.) She was also diagnosed with obesity and was counseled about diet modification and exercise. (R. at 1259.)
The following day, on February 12, 2016, Plaintiff presented to Dr. John Beaty, Ph.D., P.C., for a psychological evaluation. (R. at 1171-78.) She reported that since 2013, her pain level had never been below a 5 out of 10 and was typically around an 8 out of 10. (R. at 1172.) She reported experiencing frequent urination, "going 15 to 25 times a day," and described her bladder as feeling full even when it was not. (Id.) She felt depressed and would frequently cry because she was unable to provide for herself due to her pain. (Id.) She reported feeling lonely and anxious much of the time, and she was unable to socialize due to her pain and other problems. (R. at 1173.) Dr. Beaty observed her as being tearful and reported her mood as depressed. (Id.)
Plaintiff was administered the Brief Symptom Inventory (BSI) and found to have four clinical scales (Obsessive-Compulsive, Depression, Anxiety, and Hostility) at the "clinical significant level." (R. at 1173.) Her general stress level was also deemed "clinically significant" on the BSI. (Id.) She was also administered the Minnesota Multiphasic Personality Inventory-2 (MMPI-2), and Dr. Beaty opined that the emotional and personality measure showed a "chronic pattern of clinical depression." (R. at 1173.) He reported that on the Basic Clinical Scales, Plaintiff's scale for depression was "the most clinically significant scale at a high level." (Id.) He also reported that the scales for anxiety and tension and social anxiety were "[j]ust at clinical significance." (Id.)
Dr. Beaty noted that her Restructured Clinical Scales were "elevated significantly" for Demoralization, Low Positive Emotions, and Cynicism. (R. at 1173-74). He reported that patients scoring high on Demoralization reported feeling discouraged and demoralized and "are likely to feel overwhelmed and incapable of coping with their current life circumstances." (R. at 1174.) Patients scoring high on Low Positive Emotions are likely to be unhappy and demoralized, and "are at increased risk for clinical depression." (Id.) Patients scoring high on Cynicism view others as "untrustworthy, uncaring, concerned only about themselves, and exploitative." (Id.)
Dr. Beaty diagnosed Plaintiff with major depression that was severe and recurrent, and he assessed her adaptive functioning as 45-50. (R. at 1175.) He reported that she was experiencing "social anxiety and suspiciousness of others, which [was] rooted in long-term family conflictual relationships." (R. at 1176.) He recommended that she seek psychiatric help and psychotherapy to help her cope with her pain and illnesses. (Id.) He opined that her functioning level was such that it would be difficult for her to maintain any reasonable work schedule. (Id.) He highlighted the fact that she had been experiencing "fatigue and frequent use of the bathroom as well as episodes of extreme pain." (Id.)
Dr. Beaty also completed a questionnaire evaluating Plaintiff's "ability to do work-related activities on a day-to-day basis in a regular work setting," which rated a number of work abilities on a five-point scale (R. at 1177-78.) He determined that she could not perform the following activities "on a regular, reliable and sustained schedule in a regular work setting:"
• maintain regular attendance and be punctual within customary, usually strict tolerances;(Id.) He opined that she would be unable to meet "competitive standards" when dealing with "normal work stress" and that she would be "seriously limited" in the following abilities:
• sustain an ordinary routine without special supervision;
• complete a normal workday and workweek without interruptions from psychologically based symptoms; and
• perform at a consistent pace without an unreasonable number and length of rest periods.
• maintain attention for two-hour segment[s];(R. at 1177-78.) He concluded that due to her mental impairments, Plaintiff would be absent from work for more than four days per month. (R. at 1178.)
• work in coordination with or proximity to others without being unduly distracted;
• accept instructions and respond appropriately to criticism from supervisors;
• get along with coworkers or peers without unduly distracting them or exhibiting behavioral extremes; and
• respond appropriately to changes in a routine work setting.
On February 17, 2016, Plaintiff presented to Parkland complaining of pain that had been worsening for the past three days. (R. at 1264.) She described her pain as unbearable and rated the intensity of her current pain level as a 10 out of 10. (Id.) She had run out of her pain medications. (Id.) She also stated that physical therapy had not helped relieve her pelvic pain. (Id.) She was observed as having a normal mood and affect, and her speech and behavior was reported as normal. (R. at 1267.)
On April 7, 2016, Plaintiff presented to the gynecology clinic at Parkland and was examined by Dr. Stacy Young, MD. (R. at 1279.) She reported experiencing dysuria, as well as increased urgency and frequency with urination. (Id.) She stated that she would "[v]oid[] 17-28 times a day" and "8-10 times at night due to pain from letting her bladder get too full." (Id.) She also reported being compliant with the IC diet. (Id.) She had been referred to the pain clinic at least three times, but her referral was denied because the pain clinic would not prescribe controlled substances for other providers. (Id.) She was also examined by Dr. Sunil Balgobin, MD, who was not certain whether she had endometriosis "since she did not respond to [L]upron." (R. at 1281.)
Dysuria is described as "a symptom of pain, discomfort, or burning when urinating." See Jennifer Robinson, MD, Dysuria (Painful Urination), WEBMD MEDICAL REFERENCE (May 13, 2018), https://www.webmd.com/women/dysuria-causes-symptoms.
On May 4, 2016, Plaintiff presented to the psychiatry clinic at Parkland for evaluation. (R. at 1288.) She was examined by Kevin Johnson, PA-C. (Id.) Plaintiff stated that she had never taken psychiatric medication. (Id.) She reported her primary stressors as having to deal with pain and trying to get disability. (Id.) She reported that she would be easily overwhelmed, be in a sad mood on a daily basis, and have stretches of depression lasting up to four weeks. (Id.) She also reported having generalized anxiety and social anxiety. (Id.) Her attention, concentration, and memory were not formally tested, but were noted as appearing normal during the interview. (R. at 1290.) Mr. Johnson observed her affect as reactive and anxious and assessed her as having major depressive disorder (MDD). (Id.) He reported her Global Assessment of Functioning (GAF) score as being "51-60 moderate symptoms." (R. at 1291.) She was diagnosed with MDD. (Id.) She was prescribed Elavil for sleep assistance and Effexor to treat her depression and anxiety. (R. at 1293.)
GAF is a standardized measure of psychological, social, and occupational functioning used in assessing a patient's mental health. See Boyd v. Apfel, 239 F.3d 698, 700 n. 2 (5th Cir. 2001). A GAF score of 51 to 60 indicates a "moderate" impairment in social, occupational, or school functioning. American Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR) p. 34 (4th ed., rev. 2000).
On May 17, 2016, Plaintiff presented to the pain clinic at Parkland and was seen by Dr. Rana Humair, MD, for pain management. (R. at 1301.) Dr. Humair was unable to assess the etiology of her pain based on a recent CT scan of her pelvis and abdomen, but suspected that there might be some "scar related muscular/ineurpathic pain." (Id.) He noted that Plaintiff had a history of endometriosis and IC, which would have contributed to her pain. (Id.) Dr. Humair also noted that she had a significant depression and abuse history and opined that it significantly affected her pain state and coping. (Id.) She was referred to pain psychology and instructed to continue with psychiatry for pharmacologic management. (Id.)
On June 15, 2016, Plaintiff returned to the psychiatry clinic at Parkland and was seen by Mr. Johnson for a behavioral health follow-up visit. (R. at 1332.) She stated that she continued to suffer with poor sleep and would get 2 to 3 hours per night with Elavil. (R. at 1333.) She reported that her sad mood continued and was not improved with Effexor. (Id.) She also reported that her generalized and social anxiety remained unchanged. (Id.) Mr. Johnson assessed her with an unchanged GAF score of 51-60. (R. at 1335.) He increased her Elavil dosage for sleep assistance and continued her on Effexor for her depression and anxiety. (R. at 1338.)
On June 16, 2016, Plaintiff presented to psychologist Dr. Ian Sadler, PhD. (R. at 1344.) He noted that her mental health history was significant for depression. (Id.) Plaintiff acknowledged that pain had taken a "significant toll on quality of life and psychosocial functioning." (Id.) Dr. Sadler opined that "both depression and anxiety (PTSD spectrum-hypervigilance, avoidance/numbing, mood/cognitive disturbance) play[ed] a role in exacerbation of chronic pain symptoms." (Id.) He observed a "tendency for maladaptive cognitions (i.e., negative ruminative thinking, all or nothing thinking) associated with chronic pain symptom experience." (Id.) Based on a mental status examination, he noted that Plaintiff had a flat affect, dysthymic mood, and a goal-directed thought process. (R. at 1345.) Dr. Sadler observed her as having fair judgment, as well as exhibiting normal attention and memory within normal limits. (Id.) He opined that Plaintiff would benefit from cognitive behavioral therapy (CBT) focused on pain, weight, and anxiety management training. (R. at 1344.)
On June 17, 2016, Plaintiff presented to the gynecology clinic at Parkland complaining of chronic pelvic pain. (R. at 1349.) She reported being upset that nothing had helped her with her "debilitating" pain, even though her treatment plan kept changing. (Id.) She also reported that none of the treatments had helped with her IC. (Id.) The attending physician recommended Lupron for six months with continuous Progestin in combination. (R. at 1350.) He suggested a laparotomy and removal of both ovaries/tubes if conservative treatment continued being unsuccessful. (Id.)
On July 27, 2016, Plaintiff presented to Parkland complaining of chronic abdominal pain and was seen by Dr. Rana. (R. at 1352.) She reported that her abdominal pain was unchanged even after medication. (R. 1354-55.) She stated that her pain was a 5 out of 10 "at baseline," and a 9 out of 10 "with exacerbation." (R. at 1355.) She denied experiencing any bowel or bladder incontinence. (R. at 1353, 1357.) A CT scan of her abdomen and pelvis appeared unremarkable and no obvious abnormality was observed in the bladder or either kidney. (R. at 1358.) Plaintiff also reported that she injured her right knee two weeks earlier after a fall. (R. at 1355.) She stated that she had to wear a knee brace to stem swelling and prevent her knee from "giving in." (Id.) A right knee AP and lateral X-ray revealed no swelling or ecchymosis around her right knee, however. (R. at 1357.)
While at Parkland, Plaintiff also met with Dr. Sadler for a follow-up mental health appointment. (R. at 1364.) She reported experiencing improvement to her mood and insomnia since her last psychiatric medication adjustment. (R. at 1365.) Dr. Sadler reported that she had made "good gains" in treatment since their last visit. (Id.)
On August 1, 2016, Plaintiff presented to Parkland for a routine behavioral health follow-up visit. (R. at 1376.) She reported that her anxiety level had improved and her mood was "better." (R. at 1378, 1380). She also reported experiencing nocturia from IC. (R. at 1378.) She complained that she continued experiencing abdominal pain. (Id.)
On August 29, 2016, Plaintiff presented to Parkland for physical therapy in response to her abdominal pain. (R. at 1397.) She rated the intensity of her abdominal and vaginal pain level as a 9 out of 10. (R. at 1399.) She complained of an overactive pelvic floor muscle (PFM) and could only demonstrate a 1 out of 5 on the Manual Muscle Test (MMT). (Id.) She also exhibited significant guarding in the entire lower abdomen. (Id.) She was assessed with pelvic floor dysfunction. (Id.) As part of her plan of care, she was to perform pelvic muscle exercises to "re-train" her bladder and was instructed to keep a voiding diary and symptom log. (R. at 1400.)
On September 23, 2016, Plaintiff presented to the gynecology clinic at Parkland complaining of pelvic pain. (Id.) She was observed as tearful and stated that her pain had a significant affect on her mood. (R. at 1405-06.) She reported experiencing constant stabbing pain that would worsen with any sustained position. (R. at 1405.) The physician noted that she was referred for pelvic physical therapy, but there was no significant improvement in her pain level. (Id.) He opined that endometriosis was not the sole cause of her pelvic pain. (R. at 1406.) He also opined that surgery and continued use of Lupron would not be helpful. (Id.)
3. Hearing Testimony
On August 25, 2016, Plaintiff and a vocational expert (VE) testified at a hearing before the ALJ. (R. at 39-86.) Plaintiff was represented by an attorney. (R. at 39.)
a. Plaintiff's Testimony
Plaintiff testified that she had worked as a full-time transportation clerk in the bus barn for Dallas County Schools (DCS) between December 2013 and December 2014. (R. at 44.) She would keep track of students and buses, give out keys to the bus drivers, and assist some of the bus drivers as a bus monitor. (R. at 45.) She resigned because she was unable to work due to her medical condition. (R. at 50.)
In 2013, she worked as a tele-monitor watching heart monitors, and as an anesthesia tech, at Methodist Hospitals of Dallas (Methodist). (R. at 45.) As an anesthesia tech, she assisted the anesthesiologists with putting patients to sleep, guided supplies needed in the operating rooms, and transported patients to and from their rooms. (Id.) She had to resign because she was unable to stand, sit, or walk for long periods of time, and her doctors advised her to find a sedentary job. (R. at 51.)
Before working for Methodist, Plaintiff worked as a park coordinator for the Park and Recreation Department of the City of Dallas. (R. at 46.) She would input information for new clients that came to the park and recreation center. (Id.) She would also help children in the after-school program with their homework and transport them to and from different activities during the summer. (Id.) In 2008, she worked as a casino host for the Chickasaw nation for three months. (R. at 46-47.)
Plaintiff also worked at a Lowe's Home Improvement Center for a couple of years. (R. at 47.) She started as a cashier and was eventually promoted to paint manager. (Id.) As a paint manger, she stocked and supplied paint, lifting one- and five-gallon buckets of paint. (Id.) Between 2005 and 2006, she worked as a unit clerk for a hospital for approximately a year. (R. at 48.) Between 2000 and 2004, she worked as a slot attendant for different casinos in Louisiana. (Id.) She worked part-time as a certified nurses aide (CNA) for Daniel Jarvis Private Duty from August 2008 to February 2009. (R. at 49.)
Since 2013, Plaintiff had undergone two surgical procedures: a laproscopic surgery on November 10, 2014, and a cystoscopy and hydrodistent on May 21, 2013. (R. at 51.) Her mental health treatment at Parkland began in May 2016, which was when she started taking antidepressant medication. (R. at 51-53.) Her pelvic pain started after her partial hysterectomy in 2015. (R. at 54.) She also had a history of cancer, including breast, ovarian, and cervical cancer. (Id.)
The pain started interfering with Plaintiff's work in 2012, while she was working at Methodist. (R. at 55-56.) As a heart monitor, she was required to work 12-hour shifts, and being on her feet for that duration would cause her to experience bad pelvic pain and sharp pains down her leg. (R. at 55.) Her urologists, Drs. Foxworth and Mason, told her to switch to another position with a shorter work-shift. (R. at 56-57.) She then became an anesthesia tech, which only required her to work 8-hour shifts. (R. at 58.)
In May 10, 2013, Dr. Mason performed multiple surgical procedures including a cystoscopy with hydrodistention and an installation of a bladder cocktail. (R. at 58-59.) Dr. Mason diagnosed her post-surgery with IC. (R. at 59.) After the surgery, she experienced pain that caused her to miss at least four to eight days of work per month. (Id.) She was told to look for another job that would not require her to be on her feet for long periods of time. (Id.)
Her next job as a clerk at the bus barn only required her to be on her feet for four hours and to sit for four hours. (R. at 60.) On occasion, she would have to carry fifty-pound boxes of paper when she needed to load the copy machine. (R. at 61.) Despite the new job, her pain remained the same. (Id.) She saw a pain specialist for a functional capacity evaluation to pinpoint the amount of time she could stand, sit, and walk without experiencing pain. (R. at 62-63.)
In November 10, 2014, Dr. Foxworth performed a surgical procedure and diagnosed her with chronic pelvic pain and endometriosis. (Id.) He was supposed to remove her ovaries and "try to take some of the endometriosis off," but aborted the procedure because her endometriosis was too severe. (R. at 64.) Dr. Foxworth told her that scraping the endometriosis would cause too much damage, and if she continued with the procedure, there was a significant risk that she would have to wear a urine and colostomy bag for the rest of her life. (Id.) Plaintiff was told that she would not be able to work anymore because her pain and the necessary medication would prevent her from being able to concentrate. (R. at 64-65.) Dr. Foxworth stated that there was nothing that they could do other than try to "pacify" her pain. (R. at 65.)
Since November 2014, Plaintiff had been prescribed various narcotics to treat her pain including Morphine, Hydrocone, Tramadol, and Ibuprofen 800. (R. at 65-66.) At the time of the hearing, she reported taking Gabapentin and Meloxicam. (R. at 66.) She was recommended for a Morphine pump, but her insurance ran out, so it was never administered. (R. at 68.)
In 2015, her pain management doctor recommended that she reduce the amount of lifting, bending, and walking at work. (R. at 68.) Because there were no light duty jobs available at the bus barn, she began working as a CNA part-time. (R. at 68-69.) She only worked as a CNA for a few months because the narcotics she was taking made her drowsy and prevented her from driving to see her patients. (R. at 69-70.)
Plaintiff's health insurance lapsed in January 2015, and her pain went untreated for six months until Parkland accepted her as a welfare patient. (R. at 71.) She was depressed because of her untreated pain. (Id.) In December 2014, Dr. Foxworth recommended that she apply for disability. (Id.)
Plaintiff was suffering from insomnia because of her pain and need to urinate throughout the night. (R. at 75.) She had a problem with urinary frequency and would need to urinate up to 25 to 26 times a day. (Id.) The need to urinate would be preceded by discomforting pain, which caused her bladder to spasm. (Id.) She could only sit on the job for 30 to 45 minutes a day before experiencing extreme discomfort, and could work no more than two hours a day. (R. at 76.)
b. VE's testimony
The VE testified that Plaintiff's past work experience as a CNA was classified in the Dictionary of Occupational Titles (DOT) as medium and semiskilled, with an SVP of 4. (R. at 78-79.) An anesthesia technician was not in the DOT, so he classified it as a nurse assistant, which had the same title as a CNA. (R. at 78.) Her past work experience as a "salesperson, general hardware" was classified in the DOT as light and semiskilled, with an SVP of 4. (R. at 79.) Because she worked in the paint department, however, he opined that it should be described as medium. (Id.) Her remaining past work experience involved jobs considered "light," including child care provider (semiskilled, SVP-4), hostess (semiskilled, SVP-3), unit clerk (semiskilled, SVP-3), slot key machines attendant (unskilled, SVP-2), and clerical worker (semiskilled, SVP-4). (Id.)
The ALJ asked the VE to consider a hypothetical individual of the same age, education, and past work experience as Plaintiff who could lift and carry 20 pounds occasionally and 10 pounds frequently; stand/walk for 2 hours in an 8-hour workday; sit for 6 hours in an 8-hour workday; occasionally climb ramps or stairs; never climb ladders, ropes, or scaffolds; never crouch; occasionally crawl, stoop, or kneel; never work near hazards, including unprotected heights and open flames; never drive as a job duty; understand, remember, and carry out one to two step instructions with reasoning, mathematics, and language of 2-1-1 or less. (R. at 80.) When asked whether the hypothetical individual could perform any of Plaintiff's past work, the VE stated no. (Id.) The ALJ then asked if there was other work the hypothetical individual could perform, and the VE responded that she could work in jobs classified as sedentary. (R. at 91.) The individual could work as a final assembler (sedentary, unskilled, SVP-2), with 1,800 jobs in Texas and 29,900 in the nationally economy; table worker (sedentary, unskilled, SVP-2), with 1,100 jobs in Texas and 13,900 in the nationally economy; and cutter and paster press clippings (sedentary, unskilled, SVP-2), with 400 jobs in Texas and 3,800 in the nationally economy. (R. at 80-81.)
The hearing transcript noted this as "erasing," but is clear that the ALJ actually said "reasoning." (See R. at 80.)
When the ALJ added occasional contact with coworkers, supervisors or the public, the VE responded that this hypothetical person could still perform the same jobs. (R. at 81.) When asked about the tolerance for absenteeism, the VE responded that absences beyond one day per month would preclude competitive work. (Id.) The ALJ asked the VE to describe the tolerance for individuals off task outside their break periods, and the VE opined that "five to six minutes per hour, which would reflect eight to ten percent of a given hour," would be fine. (Id.) The VE analogized it to getting up to stretch and going to the bathroom. (Id.) The VE further explained that "[o]n the outer limit of that, 15 percent of lost production time, at that level or beyond, . . . would preclude competitive work." (Id.)
Plaintiff's attorney asked the VE whether a person that could only lift five pounds or less could do the jobs he identified, and the VE responded that it could be a problem with final assembler and paper worker. (R. at 82.) Plaintiff's attorney asked whether a person who needed hourly bathroom breaks for ten minutes at a time could retain full-time employment, but the ALJ interjected that the question had "already been asked and answered under the off task behavior." (Id.) Plaintiff's attorney next asked whether a person who was "unable to suppress psychologically-based symptoms, 25 percent of the time at work," would be able to maintain full-time employment. (Id.) The ALJ stated that the question related to being off task, which was "already asked and answered." (Id.) The VE did not provide a response to either question. (Id.)
Plaintiff's attorney asked, "[I]f a claimant were to be a distraction to his coworkers, would that pose a problem for maintaining full-time work?" (R. at 84.) The VE responded that "the 15 percent off task" measure used to determine whether a person would be capable of doing competitive work would include the "off task" time of coworkers. (Id.) When asked whether a claimant who could not stand but sit for eight hours would be precluded from any of the jobs identified, the VE replied that "[o]ne would not have to stand" for those jobs. (Id.) Plaintiff's attorney then asked whether "the inability to stoop or bend at all" would "erode the sedentary occupational base," and the VE responded that the "postural" for all of the identified jobs would be "none." (Id.)
When the ALJ asked the VE whether any part of his testimony was in conflict with the DOT, the VE responded that "[t]he questions pertaining to off task, absences, and having extended contact with others as noted in the hypothetical are not addressed by the DOT." (R. at 85.) The VE testified that the "information comes from experience in job development/job placement." (Id.)
4. Plaintiff's Post-Hearing Submissions
At the conclusion of the hearing, the ALJ told Plaintiff's attorney that Plaintiff could fill out a new function report and submit any additional medical evidence within five days of the hearing. (R. at 85.)
In a post-hearing declaration dated August 25, 2016, Plaintiff stated that between June 15, 2015 and May 18, 2016, she had kept a diary recording her "daily pain levels and daily bathroom usage due to urinary frequency." (R. at 349.) During that time frame, her "urinary frequency was usually around 20-24 times daily, with a low of 15 times and a high of 27 times daily" and her "pain levels ranged from a low 5 to a high of 10." (Id.) When her pain level ranged from 8 to 10, she "usually stayed in bed because the pain was too much to endure. (Id.) A copy of her diary was attached to her declaration. (R. at 350-92.)
On August 26, 2016, Plaintiff completed an updated function report. (R. at 317-27.) She stated that she would be unable to function "without being heavily medicated" and was "depress[ed] all the time due to the pain." (R. at 317.) She would experience additional pain when trying to urinate. (Id.) When the pain was too severe, she would not get out of bed or eat. (R. at 319.) She reported being drowsy all the time because of her pain medication and had difficulty concentrating because of her medication, pain, and depression. (R. at 320-322.) Her ability to follow instructions would diminish when she took her pain medication. (R. at 322.) She could only do an activity for 30 to 45 minutes before she would "start hurting bad." (R. at 326-27.) C. ALJ's Findings
The ALJ issued her decision denying benefits on November 2, 2016. (R. at 18-33.) At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since November 7, 2014. (R. at 21.) At step two, the ALJ found that she had the following severe impairments: obesity, HIV+ status, depression, anxiety/PTSD, and IC. (Id.) The ALJ also found that she had the following medically determinable but "non-severe" impairments: "history of endometriosis and mild osteoarthritis of, and contusion to, the right knee." (Id.) Despite those impairments, at step three, the ALJ found that Plaintiff had no impairment or combination of impairments that met or equaled the severity of one of the impairments listed in the social security regulations. (R. at 22.)
Next, the ALJ determined that Plaintiff retained the RFC to perform and maintain a limited range of sedentary work, except she could: lift and/or carry 20 pounds occasionally and 10 pounds frequently; walk and/or stand for a total of 2 hours in an 8-hour workday; sit for a total of 6 hours in an 8-hour workday; occasionally climb ramps or stairs, but never climb ladders, ropes, or scaffolds; never crouch; occasionally crawl, stoop, or kneel; never work near hazards including unprotected heights or open flames; never drive as a job duty; understand, remember, and carry out 1 to 2 step instructions (with reasoning, mathematics, and language levels of 2-1-1 or less, respectively); and have occasional contact with coworkers, supervisors, or the public. (R. at 25.)
At step four, the ALJ determined that Plaintiff was unable to perform any past relevant work. (R. at 31.) At step five, the ALJ found that transferability of job skills was not an issue because the Medical-Vocational Rules supported a finding that she was "not disabled," and considering her age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy that she could perform. (R. at 32.) Accordingly, the ALJ determined that Plaintiff had not been under a disability, as defined by the Social Security Act, from November 7, 2014, through the date of the ALJ's decision. (R. at 33.) D. VE's Post-Decision Declaration
On June 11, 2018, the VE signed a declaration stating that had reread his testimony at the disability hearing in Plaintiff's case. (doc. 18-1 at 1.) When Plaintiff's attorney questioned him about bathroom breaks, the ALJ "would not allow this issue to be developed" because the question "had been 'asked and answered under the off task behavior.'" (Id.) Had he been allowed to answer the question, he would have responded as follows:
Two of the three jobs that I recommended in response to the ALJ's hypothetical questions --i.e., final assembler (DOT# 713.687-018) and table worker (739.687-182) -- involve work on an assembly line or bench work or "forced pace employment." This means that a production rate of so many items per hour must be maintained. The work of several persons is often necessary to complete a single item. An individual who goes to the bathroom once per hour for six minutes each time (on average) - particularly if "ready access" to the bathroom is needed - has the potential to adversely affect not only her own productivity, but that of her coworkers as well. "Forced pace" work would be unsuitable for such an individual.(Id. at 1-2 (emphasis in original)).
Also, when calculating "off task" time, it is necessary to account not only for bathroom breaks but other impairment-based limitations as well. If in addition to leaving her work station one or more times per hour to go to the bathroom, the individual also has difficulty with any one of the following functions more than 10% of the time -- (1) dealing with normal work stress, (2) arriving at work on time, (3) remaining at work until quitting time, ( 4) responding appropriately to changes in a routine work setting, (5) maintaining regular attendance, or ( 6) completing a normal workweek without interruptions from psychologically based symptoms -- she would be unable to maintain employment in the competitive economy.
II. ANALYSIS
A. Legal Standards
1. Standard of Review
Judicial review of the Commissioner's denial of benefits is limited to whether the Commissioner's position is supported by substantial evidence and whether the Commissioner applied proper legal standards in evaluating the evidence. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994); 42 U.S.C. § 405(g), 1383(C)(3). Substantial evidence is defined as more than a scintilla, less than a preponderance, and as being such relevant and sufficient evidence as a reasonable mind might accept as adequate to support a conclusion. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995). In applying the substantial evidence standard, the reviewing court does not reweigh the evidence, retry the issues, or substitute its own judgment, but rather, scrutinizes the record to determine whether substantial evidence is present. Greenspan, 38 F.3d at 236. A finding of no substantial evidence is appropriate only if there is a conspicuous absence of credible evidentiary choices or contrary medical findings to support the Commissioner's decision. Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988).
The scope of judicial review of a decision under the supplemental security income program is identical to that of a decision under the social security disability program. Davis v. Heckler, 759 F.2d 432, 435 (5th Cir. 1985). The relevant law and regulations governing the determination of disability under a claim for disability insurance benefits are also identical to those governing the determination under a claim for supplemental security income. See id. Courts may therefore rely on decisions in both areas without distinction in reviewing an ALJ's decision. See id.
2. Disability Determination
To be entitled to social security benefits, a claimant must prove that he or she is disabled as defined by the Social Security Act. Leggett, 67 F.3d at 563-64; Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir. 1988). The definition of disability under the Social Security Act is "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); Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir. 1992).
The Commissioner utilizes a sequential five-step inquiry to determine whether a claimant is disabled:
1. An individual who is working and engaging in substantial gainful activity will not be found disabled regardless of medical findings.Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991) (summarizing 20 C.F.R. at § 404.1520(b)-(f)). Under the first four steps of the analysis, the burden lies with the claimant to prove disability. Leggett, 67 F.3d at 564. The analysis terminates if the Commissioner determines at any point during the first four steps that the claimant is disabled or is not disabled. Id. Once the claimant satisfies his or her burden under the first four steps, the burden shifts to the Commissioner at step five to show that there is other gainful employment available in the national economy that the claimant is capable of performing. Greenspan, 38 F.3d at 236. This burden may be satisfied either by reference to the Medical-Vocational Guidelines of the regulations or by expert vocational testimony or other similar evidence. Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987). A finding that a claimant is not disabled at any point in the five-step review is conclusive and terminates the analysis. Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987).
2. An individual who does not have a "severe impairment" will not be found to be disabled.
3. An individual who "meets or equals a listed impairment in Appendix 1" of the regulations will be considered disabled without consideration of vocational factors.
4. If an individual is capable of performing the work he has done in the past, a finding of "not disabled" must be made.
5. If an individual's impairment precludes him from performing his past work, other factors including age, education, past work experience, and residual functional capacity must be considered to determine if work can be performed.
III. ISSUES FOR REVIEW
Plaintiff presents five issues for review:
1. By deciding how [Plaintiff's] "depression" and "anxiety/post-traumatic stress disorder (PTSD)" affect her ability to work without the support of a medical opinion, did the ALJ violate the rule of Ripley v. Chater?(doc. 18 at 5.)
2. Does the ALJ's Decision credit "substantial evidence" to support the ALJ's refusal to accommodate any unscheduled bathroom breaks in the RFC determination?
3. Did the ALJ apply the correct legal standards in weighing the medical opinions of Dr. Carrington Mason, [Pliantiff's] urologist?
4. Did the ALJ make an error of law in refusing to accommodate [Plaintiff's] frequent urination on the basis that it was "no[t] ... appropriate" to do so due to the absence of "objective medical evidence to support the alleged frequency of urination"?
5. Did the ALJ err by denying [Plaintiff's] lawyer a "real opportunity" to question the VE about the effects of restroom breaks and mental limitations on the jobs available to her, thereby invalidating the hypothetical on which the ALJ's "step five" finding depends?
IV. RFC ASSESSMENT
Because Plaintiff's first four issues implicate the ALJ's RFC assessment, they are considered together.
Plaintiff argues that the ALJ's RFC assessment is not supported by substantial evidence. (doc. 18 at 8, 20.)
Residual functional capacity, or RFC, is defined as the most that a person can still do despite recognized limitations. 20 C.F.R. at § 404.1545(a)(1). The RFC determination is a combined "medical assessment of an applicant's impairments with descriptions by physicians, the applicant, or others of any limitations on the applicant's ability to work." Hollis v. Bowen, 837 F.2d 1378, 1386-87 (5th Cir. 1988) (per curiam). It "is an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis." Social Security Ruling (SSR) 96-8p, 1996 WL 374184, at *1 (S.S.A. July 2, 1996). An individual's RFC should be based on all of the relevant evidence in the case record, including opinions submitted by treating physicians or other acceptable medical sources. 20 C.F.R. at § 404.1545(a)(3) (2012); SSR 96-8p, 1996 WL 374184, at *1.
The ALJ "is responsible for assessing the medical evidence and determining the claimant's residual functional capacity." Perez v. Heckler, 777 F.2d 298, 302 (5th Cir. 1985). The ALJ may find that a claimant has no limitation or restriction as to a functional capacity when there is no allegation of a physical or mental limitation or restriction regarding that capacity, and no information in the record indicates that such a limitation or restriction exists. See SSR 96-8p, 1996 WL 374184, at *1. The ALJ's RFC decision can be supported by substantial evidence even if she does not specifically discuss all the evidence that supports her decision or all the evidence that she rejected. Falco v. Shalala, 27 F.3d 160, 163-64 (5th Cir. 1994). A reviewing court must defer to the ALJ's decision when substantial evidence supports it, even if the court would reach a different conclusion based on the evidence in the record. Leggett, 67 F.3d at 564.
Nevertheless, the substantial evidence review is not an uncritical "rubber stamp" and requires "more than a search for evidence supporting the [Commissioner's] findings." Martin v. Heckler, 748 F.2d 1027, 1031 (5th Cir. 1984) (citations omitted). The Court "must scrutinize the record and take into account whatever fairly detracts from the substantiality of the evidence supporting the" ALJ's decision. Id. Courts may not reweigh the evidence or substitute their judgment for that of the Secretary, however, and a "no substantial evidence" finding is appropriate only if there is a "conspicuous absence of credible choices" or "no contrary medical evidence." See Johnson, 864 F.2d at 343 (citations omitted). A. Mental RFC
Plaintiff argues that the ALJ improperly substituted her medical judgment for the opinion evidence of record regarding Plaintiff's mental impairments in determining her RFC in violation of Ripley v. Chater, 67 F.3d 552 (5th Cir. 1995). (doc. 18 at 8-16.) The Commissioner responds that the ALJ properly interpreted the medical evidence in determining her mental capacity for work. (doc. 21 at 8-13.)
In Ripley, the claimant argued that the ALJ failed to develop the record fully and fairly by finding that he could perform sedentary work even though there was no medical testimony to support that conclusion. Ripley, 67 F.3d at 552. The Fifth Circuit noted that although an ALJ should usually request a medical source statement describing the types of work that the applicant was still capable of performing, the absence of such a statement did not necessarily make the record incomplete. Id. Rather, the court had to consider whether there was substantial evidence in the record to support the ALJ's decision. Id. The record contained "a vast amount of medical evidence" establishing that the claimant had a back problem, but it did not clearly establish the effect of that problem on his ability to work. Id. The ALJ's RFC determination was therefore not supported by substantial evidence, so the Fifth Circuit remanded the case with instructions to the ALJ to obtain a report from a treating physician. Id. at 557-58. Notably, the Fifth Circuit rejected the Commissioner's argument that the medical evidence discussing the extent of the claimant's impairment substantially supported the ALJ's RFC assessment, finding that it was unable to determine the effects of the claimant's condition on his ability to work absent reports from qualified medical experts. Id. at 558 n.27; see also Browning v. Barnhart, No. 1:01-CV-637, 2003 WL 1831112, at *7 (E.D. Tex. Feb. 27, 2003).
Here, the ALJ considered Dr. Beaty's medical assessment of Plaintiff's mental ability to perform work-related activities. (R. at 22.) Dr. Beaty diagnosed Plaintiff with major depression (recurrent, severe) and assessed her adaptive functioning at 45-50. (R. at 1175.) He opined that Plaintiff would be unable to perform the following activities in a regular work setting: maintain regular attendance; sustain an ordinary routine without special supervision; complete a normal workday and workweek without interruptions from psychologically based symptoms; and perform at a consistent pace with limited breaks. (R. at 1177-78.) Plaintiff would also be "unable to meet competitive standards" in dealing with "normal work stress." (R. at 1177.) She would be "seriously limited" in being able to maintain attention for more than two hours; work and get along with others without being unduly distracted; accept instructions and properly respond to criticism; and respond appropriately to changes in a routine work setting. (R. at 1177-78.) He concluded that her functioning level would make it difficult for her to maintain any reasonable work schedule, and she would probably miss work more than four days per month due to her mental impairments. (R. at 1176, 1178.)
The ALJ expressly gave "little weight" to Dr. Beaty's opinion, describing it as simply a narrative of Plaintiff's "long self-reported history with some inventories and a host of generic statements about what [her] subjective responses suggest in relation to the population as a whole." (R. at 22.) The ALJ found that Dr. Beaty "focused more on physical impairments (not his specialty) than on objective findings relating to the claimant's mental health." (R. at 22-23.) The ALJ then cited a March 20, 2015 opinion of an SAPC who considered Plaintiff's medical records and noted that she reported experiencing "depression due to pain." (R. at 117-18.) The SAPC, however, did not address mental impairment because it was not initially alleged in Plaintiff's application for DIB and SSI, and she did not start mental health treatment until May 2016. (Id.) Nevertheless, the ALJ gave the opinions of the SAPC "greater weight" than Dr. Beaty's opinions. (R. at 23.)
The ALJ also considered the progress notes of a Parkland physician's assistant (PA) who began Plaintiff's mental health treatment in May 2016. (R. at 23.) The PA conducted Plaintiff's psychiatric examination and diagnosed her with depression with a GAF score of 51-60, which was indicative of moderate symptoms. (R. at 1288.) When Plaintiff presented to the PA the following month, she reported no improvement with her antidepressants. (R. at 1333.) Her GAF score was unchanged at 51-60, however. (R. at 1335.) The ALJ gave "significant weight" to both GAF scores. (R. at 23, 1288, 1335.) In her mental RFC assessment, the ALJ determined that based on Plaintiff's depression and anxiety/PTSD, she could "understand, remember, and carry out 1-2-step instructions (with reasoning, mathematics, and language levels of 2-1-1 or less, respectively), and to have occasional contact with coworkers, supervisors, or the public." (R. at 30.)
While the ALJ may choose to reject the opinions of Dr. Beaty, "[s]he cannot independently decide the effects of Plaintiff's . . . impairments on [her] ability to work, as that is expressly prohibited by Ripley." Shugart v. Astrue, No. 3:12-CV-1705-BK, 2013 WL 991252, at *5 (N.D. Tex. Mar.13, 2013). There are no other medical opinions in the record regarding the effects Plaintiff's mental impairments had on her ability to work, particularly in the areas of understanding, remembering, carrying out instructions, and interacting with others. The ALJ gave considerable weight to Plaintiff's GAF scores. (See R. at 23.) An unexplained GAF score will not constitute medical opinion of work-related functioning, however. See Bobinger v. Astrue, No. 1:09-CV-103-C, 2011 WL 1085265, at *5 (N.D. Tex. Mar. 24, 2011) (noting that "a medical opinion as to a claimant's GAF is not automatically reflected in any RFC finding, nor does any particular GAF score necessarily correlate to specific limitations imposed by a claimant's mental impairment"). The ALJ also relied on medical evidence, including treatment notes from Parkland, in determining Plaintiff's mental RFC. (R. at 22-25, 30.) None of that evidence addressed the effects of Plaintiff's conditions on her ability to work. See Browning, 2003 WL 1831112, at *7 (finding despite the fact that there was a vast amount of treating sources' medical evidence in the record establishing that plaintiff suffered from certain impairments, including voluminous progress reports, clinical notes, and lab reports, "none [made] any explicit or implied reference to effects these conditions h[ad] on claimant's ability to work" and the ALJ could not rely on that "raw medical evidence as substantial support for" the claimant's RFC).
See also Bronson v. Astrue, 530 F. Supp.2d 1172, 1181 (D. Kan. 2008) (explaining that an unexplained raw GAF score "does not address which particular aspects of functioning is primarily reflected," as such score "may be addressing overall symptoms or social functioning rather than occupational functioning, which is the issue at step two of the sequential evaluation process"); Ward v. Astrue, No. 300-CV-1137-J-HTS, 2008 WL 1994978, at *3 (M.D. Fla. May 8, 2008) (noting that "an opinion concerning GAF, even if required to be accepted as valid, would not translate into a specific finding in regard to functional limitations"); cf. Kennedy v. Astrue, 247 F. App'x 761, 766 (6th Cir. 2007) ("A GAF score may help an ALJ assess mental RFC, but it is not raw medical data.").
The ALJ appears to have relied on her own opinion, which she may not do. See Williams v. Astrue, 355 F. App'x 828, 832 n.6 (5th Cir. 2009) ("[a]n ALJ may not-without the opinions from medical experts-derive the applicant's residual functional capacity based solely on the evidence of his or her claimed medical conditions, [and] an ALJ may not rely on his own unsupported opinion as to the limitations presented by the applicant's medical conditions."); Tyler v. Colvin, No. 3:15-CV-3917-D, 2016 WL 7386207 (N.D. Tex. Dec. 20, 2016) (finding that an ALJ impermissibly relied on his own medical opinion to develop his RFC determination). Consequently, substantial evidence does not support the mental aspect of the ALJ's RFC determination. See Medendorp v. Colvin, No. 4:12-CV-687-Y, 2014 WL 308095, at *6 (N.D. Tex. Jan. 28, 2014) (finding because the ALJ rejected the only medical opinion in the record that he had analyzed that explained the effects of the claimant's impairments on her ability to perform work, there was no medical evidence supporting the ALJ's RFC determination); Lagrone v. Colvin, No. 4:12-CV-792-Y, 2013 WL 6157164, at *6 (N.D. Tex. Nov. 22, 2013) (finding substantial evidence did not support the ALJ's RFC determination where the ALJ rejected all medical opinions in the record that might explain the effects of the claimant's physical impairments on his ability to perform work and where there were no such opinions as to claimant's mental impairments).
Because "[p]rocedural perfection in administrative proceedings is not required" and a court "will not vacate a judgment unless the substantial rights of a party have been affected," Plaintiff must show she was prejudiced by the ALJ's failure to rely on medical opinion evidence in assessing her RFC. See Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988) (per curiam). To establish prejudice, Plaintiff must show that the ALJ's failure to rely on a medical opinion as to the effects her impairments had on her ability to work casts doubt onto the existence of substantial evidence supporting her disability determination. See McNair v. Comm'r of Soc. Sec. Admin., 537 F. Supp. 2d 823, 837 (N.D. Tex. 2008) ("Procedural errors in the disability determination process are considered prejudicial when they cast doubt onto the existence of substantial evidence in support of the ALJ's decision.") (citing Morris v. Bowen, 864 F.2d 333, 335 (5th Cir. 1988)).
Here, as in Williams, the ALJ's failure to rely on medical opinions in determining Plaintiff's RFC casts doubt as to whether substantial evidence exists to support the ALJ's finding that Plaintiff is not disabled. See Williams, 355 F. App'x at 832 (finding the decision denying the claimant's claim was not supported by substantial evidence where the RFC was not supported by substantial evidence because the ALJ rejected the opinions of the claimant's treating physicians and relied on his own medical opinions in determining the RFC); see also Laws v. Colvin, No. 3:14-CV-3683-B, 2016 WL 1170826 (N.D. Tex. Mar. 25, 2016) (reversing and remanding for further proceedings for lack of substantial evidence because the ALJ's failure to rely on a medial opinion in determining the plaintiff's RFC). B. Physical RFC
Plaintiff also claims the ALJ's RFC assessment of her physical impairments is flawed because, despite substantial evidence of Plaintiff's urinary frequency due to IC, it failed to account for her need to take unscheduled bathroom breaks on an hourly basis and have "ready access" to a bathroom for this purpose. (doc. 18 at 20.) The Commissioner argues that substantial evidence supports the ALJ's RFC findings because she found there was no objective medical evidence of Plaintiff's alleged frequency of urination. (doc. 21 at 14.)
When discussing Plaintiff's RFC, the ALJ first stated that she considered all of Plaintiff's symptoms and the extent to which those symptoms could "reasonably be accepted as consistent with the objective medical evidence and other evidence" as required under 20 CFR §§ 404.1529 and 416.929 and SSRs 96-4p and 16-3p, as well as "opinion evidence in accordance with the requirements of 20 CFR §§ 404.1527 and 416.927 and SSRs 96-2p, 96-Sp, 96-6p and 06-3p." (R. at 25.) She referenced Plaintiff's testimony that some of her pelvic pain would occur "just before urination, because any amount of urine in the bladder cause[d] spasms." (R. at 26, 75.) The ALJ likewise acknowledged her testimony that she would "urinate[] 15 to 20 times per day." (R. at 26, 75, 349.)
At the hearing, Plaintiff actually testified that she would need to urinate up to 25 to 26 times per day. (R. at 75.) In her declaration submitted to the ALJ after the hearing, Plaintiff declared that her "urinary frequency was usually around 20-24 times daily, with a low of 15 times and a high of 27 times daily." (R. at 349.)
In discussing the medical evidence, the ALJ acknowledged Plaintiff's "history of interstitial cystitis with pelvic pain." (R. at 27.) She noted Plaintiff's May 21, 2013 cystoscopy, which revealed "an atrophic hyperemic bladder" (R. at 27, 529, 639), as well as her November 10, 2014 diagnostic laparoscopy, from which she was post-operatively diagnosed with having chronic pelvic pain and endometriosis (R. at 27, 456, 460).
The ALJ also referred to an August 14, 2015 medical source statement by Dr. Mason. (R. at 28, 1166-69.) She first noted that Dr. Mason's assessment was based on when he treated Plaintiff for her IC between May 1, 2013, and September 3, 2014. (R. 28, 1166.) She noted that Dr. Mason described Plaintiff as exhibiting symptoms of "urinary frequency, bladder/pelvic pain, and depression." (Id.) She pointed to his clinical findings of "suprapubic tenderness on physical examination and glomerulations after hydrodistention on cystoscopy." (Id.) She also noted his comment regarding Plaintiff's need to urinate on an hourly basis. (R. at 28, 1167.) The ALJ highlighted the fact that Dr. Mason "declined to offer opinions regarding specific functional limitations" because it was something he was "unable to assess." (R. at 28, 1166.) She further noted his opinion that Plaintiff "needed a job that permitted ready access to a restroom and that she would need to take unscheduled restroom breaks during a working day," as well as his failure to state "how often or for how long" those breaks would be. (R. at 28, 1167-68.) Because Dr. Mason had not seen Plaintiff in over a year when he provided the medical source statement, which related to a period prior to the alleged onset date, the ALJ only apportioned "some weight" to his opinions "to the extent consistent with the findings in [her] decision." (R. at 28.)
Both parties agree that the ALJ incorrectly attributed this opinion to Dr. Foxworth. (docs. 18 at 22; 21 at 15.)
The ALJ also referenced a December 2015 CT scan of Plaintiff's pelvis and abdomen that "showed hepatomegaly, but no abdominopelvic metastatic disease." (R. at 28, 1225.) She noted Dr. Rana's inability to determine the etiology of Plaintiff's pain based on a May 2016 CT scan of her pelvis and abdomen. (R. at 28, 1301.) She also noted Dr. Rana's findings of no tenderness to palpation of the abdomen or guarding when he examined Plaintiff on July 26, 2016. (R. at 28-29, 1358.) The ALJ underscored Plaintiff's denial of bladder incontinence during that examination. (R. at 29, 1353, 1357.)
The ALJ concluded that Plaintiff's "medically determinable impairments could reasonably be expected to cause some of the alleged symptoms," but her "statements concerning the intensity, persistence and limiting effects of th[o]se symptoms [were] inconsistent with the medical evidence and other evidence in the record." (R. at 29.) She highlighted the fact that "imaging studies of the abdomen/pelvis have been generally unremarkable, and physical examinations-including those of Dr. Rana in 2016-have not been impressive." (Id.) When determining Plaintiff's RFC, the ALJ found that there was "no objective medical evidence to support the alleged frequency of urination (since the alleged onset date), and thus no specific restroom breaks are appropriate in the residual functional capacity." (R. at 30.)
It is clear from the ALJ's narrative discussion that she acknowledged Plaintiff's IC, as well as her complaints of pelvic pain and urinary frequency. Nevertheless, she failed to consider any medical opinions regarding what effects, if any, those conditions had on her ability to work. Other than Dr. Mason's medical source statement, there was no evidence in the record showing that a physician completed a physical RFC assessment or even opined about Plaintiff's ability to perform work-related functions despite experiencing symptoms of urinary frequency. As noted, in the absence of medical expert opinions, an ALJ may not assess a claimant's RFC by relying solely "on [her] own unsupported opinion as to the limitations presented by the applicant's medical conditions." Williams, 355 F. App'x at 832 n. 6; see also Moreno v. Astrue, No. 5:09-CV-123-BG, 2010 WL 3025525, at *3 (N.D. Tex. June 30, 2010), rec. adopted, 2010 WL 3025519 (N.D. Tex. Aug. 3, 2010) (explaining that without expert medical interpretation, "evidence describing the claimant's medical conditions is insufficient to support an RFC determination"). The ALJ therefore "impermissibly relied on [her] own medical opinions" to implicitly find that Plaintiff's frequency of urination had no effects on her ability to work. See Williams, 355 Fed. App'x at 832.
As with her mental RFC, Plaintiff must show she was prejudiced by the ALJ's failure to rely on medical opinion evidence in assessing her physical RFC. See Mays, 837 F.2d at 1364. To establish prejudice, Plaintiff must show that the ALJ's failure to obtain a medical opinion in assessing the effects that urinary frequency had on her physical RFC casts doubt onto the existence of substantial evidence supporting her disability determination. See McNair, 537 F. Supp. 2d at 837.
The evidence before the ALJ showed that on June 13, 2011, Plaintiff was seen by a physician at Parkland and assessed with IC. (R. at 892.) She complained of chronic pelvic pain and experiencing "nocturia and some urinary urgency." (Id.) Plaintiff's IC diagnosis was confirmed by Dr. Mason when he performed her cystoscopy with hydrodistention on May 21, 2013. (R. at 639.) She was also diagnosed with an atrophic hyperemic bladder and she continued to experience "chronic frequency, urgency and bladder pain." (Id.) She would continue to visit Dr. Mason between May 2013, and September 2014, complaining of pelvic pain and urinary frequency. (R. at 635-775.) Further, the treatment notes from Parkland between September 20. 2015 and August 1, 2016, chronicle the extent of Plaintiff's urinary frequency. (R. at 1186-1378.) Specifically, on September 20, 2015, she reported voiding 20 to 24 times a day (R. at 1186); on October 6, 2015, she reported voiding 18 to 25 times a day (R. at 1199); on April 7, 2016, she reported voiding 17 to 28 times a day, and 8 to 10 times a night (R. at 1279); and on August 1, 2016, she reported suffering from nocturia. (R. at 1378.) Dr. Beaty also reported Plaintiff's need to urinate "15 to 25 times a day" in her February 12, 2016 psychological evaluation. (R. at 1172.) Plaintiff testified that she would have to urinate up to 26 times a day. (R. at 75.) She also submitted a declaration and daily bathroom usage diary from June 25, 2015, through May 18, 2016, which showed that her urinary frequency would average between 20 to 24 times a day. (R. at 349-92.)
While the ALJ acknowledged Plaintiff's testimony and statements to her physicians that she suffered from urinary frequency, she found that there was no objective medical evidence to support her alleged frequency of urination. (R. at 30.) Consequently, the ALJ did not incorporate any limitations into Plaintiff's RFC to accommodate for additional restroom breaks to account for the urinary frequency. (See R. at 30.) Notably, at the hearing, the ALJ refused to allow Plaintiff's attorney to ask questions about how Plaintiff's daily bathroom usage might impact her ability to retain full-time employment. (R. at 84.) In his post-decision declaration, the VE stated that two of the three jobs identified were "forced work" jobs, which would have been unsuitable for a person who would need to go to the bathroom once per hour. (doc. 18-1 at 1.)
Given the evidence supporting Plaintiff's complaints of urinary frequency, the ALJ could have reached a different disability determination had she obtained expert medical opinion regarding the effects that this condition had on Plaintiff's ability to work, and incorporated relevant limitations into his RFC. See Boles v. Colvin, No. 1:15-CV-0049-BL, 2016 WL 4257441, at *10 (N.D. Tex. May 27, 2016) (explaining that because the ALJ "rejected specific medical opinions of treating physicians that [the] [p]laintiff's impairments require him to have ready access to a bathroom and to frequent, unscheduled breaks," the RFC determination was not supported by substantial evidence when the record before the ALJ provided "no basis for rejecting the non-exertional limitations noted by [the] [p]laintiff's treating physicians"); see also Mac v. Sullivan, 811 F. Supp. 194, 199 (E.D. Pa. 1993) (explaining "that [a] necessity to leave the work station regularly due to incontinence could significantly affect a claimant's ability to meet job demands, even for a claimant of unimpaired physical strength, and thus reduce the number of jobs available to that claimant") (citation omitted); cf. SSR 15-1p (explaining that when assessing the RFC of a claimant with IC, the ALJ "must consider all of the person's impairment-related symptoms in deciding how such symptoms may affect functional capacity," including urinary frequency, which might "necessitate trips to the bathroom as often as every 10 to 15 minutes, day and night").
Accordingly, the ALJ's failure to consult medical opinion evidence regarding the effects of Plaintiff's urinary frequency, along with her other impairments, when assessing her RFC prejudiced her claim, and remand is required on this basis.
Because the ALJ's determination of Plaintiff's RFC on remand will likely affect the remaining issues, they are not addressed.
V. RECOMMENDATION
The Commissioner's decision should be REVERSED, and the case should be REMANDED for further proceedings.
SO RECOMMENDED, on this 26th day of February, 2019.
/s/_________
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE
INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of these findings, conclusions and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions and recommendation must file specific written objections within 10 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. at Civ. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's findings, conclusions and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).
/s/_________
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE