     Case: 14-60115      Document: 00512806335         Page: 1    Date Filed: 10/17/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-60115                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                         October 17, 2014
SANDI HATHCOTE VAUGHN,                                                     Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL
SECURITY,

              Defendant - Appellee




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 1:13-CV-72


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM:*
       On May 19, 2010, pro se Plaintiff-Appellant Sandi Hathcote Vaughn
(“Vaughn”) applied for disability insurance benefits under Title II of the Social
Security Act, 42 U.S.C. §§ 401 et seq. The Commissioner of Social Security (the
“Commissioner”) initially denied Vaughn’s application. Vaughn requested a
hearing before an Administrative Law Judge (“ALJ”), which was conducted on


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 14-60115
November 30, 2011. After this hearing, the ALJ determined that Vaughn was
not disabled and again denied her benefits. Vaughn then sought review of the
ALJ’s decision by the Appeals Council, which denied Vaughn’s request for
review rendering the ALJ’s decision final. Vaughn now appeals the decision of
the district court, which affirmed the Commissioner’s final decision denying
her application for disability benefits. Because the record contains substantial
evidence in support of the denial of benefits, we AFFIRM.
                    FACTS AND PROCEDURAL HISTORY
       On May 19, 2010, Vaughn applied for disability benefits alleging that
she was unable to work due to depression, social anxiety, and a bipolar
disorder. Vaughn asserted that these conditions resulted in an inability to
work as of June 15, 2009. She also alleged that she was terminated from her
position with a former employer, Carlock Nissan of Tupelo, Inc. (“Carlock
Nissan”) on that same date. 1
       Vaughan was fifty-two years old at the time she filed her application for
disability benefits. She was a high school graduate and had attended college
for three years. Vaughn’s prior work experience consisted of positions as a
sales router, a receptionist, a craft show director, and a customer relations
manager.
       Beginning in July of 2009, Vaughn periodically sought treatment for her
conditions at two outpatient facilities: Mantachie Rural Health Care
(“Mantachie”) and the Region III Mental Health Center (“Region III”). Vaughn




       1Vaughn claimed that she was wrongfully terminated from her position with Carlock
Nissan for being “a whistleblower.” On December 7, 2009, Vaughn commenced a federal
action against Carlock Nissan in the United States District Court for the Northern District
of Mississippi, alleging that she was entitled to unpaid overtime pay under the Fair Labor
Standards Act, 29 U.S.C. §§ 201, et seq., and that her termination violated public policy. See
Complaint, Vaughan v. Carlock Nissan of Tupelo, Inc., No. 09-CV-00293 (N.D. Miss. Dec. 7,
2009), ECF No. 1.
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first visited Mantachie on July 30, 2009 and reported symptoms of headaches,
fatigue, and generalized anxiety. She also expressed trouble sleeping and
changes in her sleep patterns.
      On September 21, 2009, Vaughn reported similar symptoms at Region
III. Specifically, Vaughn reported symptoms of depression, insomnia, and
problems with her memory and concentration. She attributed her depressive
symptoms to the loss of her position as a customer relations manager at
Carlock Nissan. Vaughn was diagnosed as suffering from adjustment disorder
with depression and insomnia, borderline personality disorder, and general
anxiety. In addition, Vaughn was assessed using the Global Assessment of
Functioning (“GAF’) Scale, which is a diagnostic measurement of an
individual’s overall psychological functioning. 2 Vaughn received an overall
GAF score of 60, which indicated that her symptoms were classified as
moderate.
      Vaughn’s Region III treatment notes indicate that Vaughn complained
of social anxiety and self-imposed isolation. For example, although Vaughn
had once been extroverted, she now avoided places where she might encounter
large groups of people. As a result, Vaughn no longer attended church and
only socialized with small groups of people. Vaughn also reported increased
forgetfulness and continuing problems with her concentration. Despite these
issues, Vaughn generally appeared alert, oriented, and cooperative at her
psychological appointments.
      In addition, Vaughn enrolled in an online college business management
program. Although most of her course work was completed online, Vaughn



      2  The GAF Scale assesses an individual’s “psychological, social, and occupational
functioning on a hypothetical continuum of mental-health-illness.” American Psychiatric
Ass’n: Diagnostic and Statistical Manual of Mental Disorders at 34 (4th ed. Text Revision
2000) (DSM-IV-TR).
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attended small seminar meetings with six to seven other students. According
to Vaughn, she was able to attend these seminar meetings without increased
anxiety. In May of 2010, Vaughn reported that she was maintaining a 4.0
grade average in her program, however, Vaughn’s grades eventually began to
slip and she was ultimately unable to complete her program as a result of
failing one of her required courses.
      Vaughn was referred to two psychologists to undergo consultive mental
status examinations. Dr. Amy Morgan assessed Vaughn in September of 2010
and determined that Vaughn suffered from moderate limitations in
maintaining concentration, moderate limitations in social functioning, and
mild limitations with respect to the activities of daily life. Nevertheless, Dr.
Morgan determined that Vaughn was capable of understanding simple
instructions, could carry out routine and repetitive work-related tasks, and
would be able to maintain concentration for two-hour periods.
      Dr. Joe Edward Morris assessed Vaughn in September of 2011. Dr.
Morgan assessed Vaughn’s affect as elevated and noted that she appeared
coherent and logical. Vaughn reported to Morgan that she was able to perform
basic tasks such as doing chores around the house, driving short distances,
managing    her   money,     making    routine   purchases,    and    scheduling
appointments. However, Vaughn exhibited limitations with respect to
immediate recall and concentration. Based on his assessment, Dr. Morgan
determined that Vaughn’s psychological limitations would prevent her
responding favorably to supervision and from interacting cooperatively with
coworkers. In addition, Dr. Morgan determined that although Vaughn could
understand and follow simple instructions in a clinical environment, her
psychological limitations impaired her to the point where she was not able to
perform routine and repetitive work-related tasks.


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      On November 30, 2011, an Administrative Law Judge (“ALJ”) conducted
a hearing at which Vaughn and a vocation expert testified. At the hearing,
Vaughn, who was represented by counsel, testified that her daily functioning
was severely compromised by her psychological symptoms. Vaughn did not
allege that any physical limitation affected her ability to work.
      According to Vaughn, her social anxiety made her avoid people and
prevented her from being around family and friends.           Vaughn admitted,
however, that she could socialize in smaller groups of four or fewer people.
Vaughn also testified that she experienced memory and concentration
problems, which resulted in instances of forgetfulness and disorganized
thinking. For example, Vaughn testified that she had once left her keys in the
door of her home for a number of days. She also testified that she almost left
her wallet at a store and her groceries in a supermarket cart. Despite these
limitations, however, Vaughn was able to prepare meals for herself, keep her
house in order, and make routine trips to the supermarket to make purchases.
In addition, Vaughn took care of her father, who had suffered from a stroke, by
periodically taking him to the doctor for his appointments.
      In a decision dated March 6, 2012, the ALJ determined that despite her
psychological limitations, Vaughn retained the functional capacity to perform
a full range of work at all exertion levels with the following nonexertional
limitations:
      The claimant is limited to unskilled, simple repetitive tasks; no
      contact/interaction with the public; occasional contact/interaction
      with co-workers and supervisors at a superficial level; and low
      stress work defined as little change in the work environment,
      little decisionmaking, and no strict production quota.
Next, based on the hearing testimony of a vocational expert, the ALJ
determined that while Vaughn could not perform her past work, there were
suitable alternate jobs in the economy for an individual with the same

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vocational characteristics and work-related limitations as plaintiff. As such,
plaintiff was not disabled under the Social Security Act and her application for
benefits was denied.
                          STANDARD OF REVIEW
      Appellate review of the Commissioner’s denial of disability benefits is
limited to “whether the Commissioner applied the proper legal standards and
whether substantial evidence in the record supports his decision.” Jones v.
Astrue, 691 F.3d 730, 733 (5th Cir. 2012). Substantial evidence is defined as
“such relevant evidence as a reasonable mind might accept to support a
conclusion. It is more than a mere scintilla and less than a preponderance.”
Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000) (quoting Ripley v. Chater,
67 F.3d 552, 555 (5th Cir.1995)).       In applying the substantial evidence
standard, this Court may not “reweigh the evidence in the record, try the issues
de novo, or substitute its judgment for the Commissioner’s.” Apfel, 209 F.3d at
452; accord Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992). Rather,
any conflicts in the evidence are for the Commissioner to resolve, and where
the Commissioner’s “findings are supported by substantial evidence, they must
be affirmed.” Apfel, 209 F.3d at 452.
                                 DISCUSSION
      To obtain entitlement disability benefits, a claimant must demonstrate
that she has a medically determinable physical or mental impairment lasting
at least twelve months that prevents her from engaging in substantially
gainful activity. See 42 U.S.C. § 423(d)(1)(A). To evaluate a claim of disability,
the Commissioner conducts a five-step sequential analysis, which considers
whether: (1) the claimant is presently working in substantially gainful activity;
(2) the claimant has a severe impairment; (3) the impairment meets or equals
an impairment listed in Appendix 1 of the Social Security Regulations; (4) the
impairment prevents the claimant from doing past relevant work; and (5) the
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impairment prevents the claimant from adjusting to any other substantially
gainful activity. 20 C.F.R. § 404.1520.
      “A finding that a claimant is disabled or is not disabled at any point in
the five-step review is conclusive and terminates the analysis.” Greenspan v.
Shalala, 38 F.3d 232, 236 (5th Cir. 1994) (quoting Lovelace v. Bowen, 813 F.2d
55, 58 (5th Cir. 1987). If, however, a claimant has a severe impairment that
neither meets nor equals an impairment listed in Appendix 1 of the
regulations, the Commissioner will assess her residual functional capacity
(“RFC”) to determine whether she can do past or alternative work at steps four
and five of the analysis. See Dunbar v. Barnhart, 330 F.3d 670, 672 (5th Cir.
2003); Greenspan, 38 F.3d at 236. A claimant’s RFC is “the most [a claimant]
can do despite [her] limitations.” 20 C.F.R § 404.1545(1).
      Vaughn first argues that the ALJ erred in determining that the severity
of her mental impairments did not render her presumptively disabled at step
three of the inquiry. In determining that Vaughn’s impairments did not ipso
facto render her disabled, the ALJ properly relied on the criteria provided in
20 C.F.R. Part 404, Subpart P, Appendix 1. Specifically, the ALJ determined
that Vaughn was only mildly restricted in the “activities of daily living,” had
moderate difficulties with “social functioning,” and had moderate difficulties
with regard to her “concentration, persistence, or pace.” This determination
was based on evidence that Vaughn was able to perform household chores and
cook for herself, took care of her father and helped him attend his doctor’s
appointments, enrolled in college level courses, and scored 60 on the GAF
Scale, which indicated that her symptoms were only moderate. Although the
ALJ credited some of Vaughn’s subjective symptoms, she determined that
objective evidence in the record indicated that Vaughn’s symptoms were not so
severe such that Vaughn was presumptively disabled. Sufficient evidence in
the record supports the ALJ’s resolution of this issue and the Court must
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therefore affirm this determination. See Chambliss v. Massanari, 269 F.3d
520, 522 (5th Cir. 2001) (explaining that the ALJ’s resolution of conflicting
evidence in the record is entitled to considerable evidence); Patton v.
Schweiker, 697 F.2d 590, 592 (5th Cir. 1983) (noting that any conflicts in the
evidence are to be resolved by the Commissioner). 3
       Vaughn next argues that the ALJ erred in determining the scope of her
RFC and in using her RFC to conclude that she could perform alternative work
in the economy. Her argument is premised upon what she contends is a logical
inconsistency in the ALJ’s determination. With respect to Vaughn’s RFC, the
ALJ determined that Vaughn had the capacity to perform a full range of work
at all exertional levels but with certain nonexertional limitations due to her
mental impairments. The ALJ then found that Vaughn could not perform her
past relevant work due to these limitations. This past relevant work, which
included positions such as receptionist and customer relations manager,
consisted entirely of jobs classified as sedentary and light work. Nevertheless,
relying on the testimony of the vocational expert, the ALJ found that Vaughn
could perform alternative work in the economy, in positions classified as
medium work, which by definition have greater physical requirements than



       3 For the first time in her reply brief, Vaughn argues that the ALJ erred in failing to
take judicial notice of an order entered by the United States District Court for the Northern
District of Mississippi appointing a next friend,” which is a representative equivalent to a
guardian ad litem, to represent Vaughn in a federal action she filed against her former
employer Carlock Nissan. Vaughan v. Carlock Nissan of Tupelo, Inc., No. 09-CV-00293 (N.D.
Miss. Feb. 24. 2012), ECF No. 180. Vaughn’s attorney requested this relief because Vaughn
was unwilling to “concede” her alleged Title VII claim even though her attorney repeatedly
informed her that she had never asserted such a claim and that the facts of her case did not
warrant one. See id. After a hearing, the district court granted Vaughn’s attorney’s motion
but noted that “the court, of course, makes no finding as to plaintiff’s competence related to
any issue save the present one.” Id. Notwithstanding the fact that this Court does not
address arguments raised for the first time on reply, even by pro se litigants, there is no
indication that Vaughn in fact raised this issue during her administrative proceedings. In
any event, the district court’s order does not provide a basis to alter the Court’s conclusion
that substantial evidence supported of the ALJ’s determination.
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Vaughn’s past positions.        There is no logical inconsistency in this
determination.
      The regulations classify jobs as consisting of, inter alia, sedentary, light,
or medium work. 20 C.F.R. § 416.967. This classification is based on the
physical exertional requirements of the job. Id.; see also 20 C.F.R. § 404.1569a.
Medium work, for example, refers to jobs in which an individual would be
expected to “lift[] no more than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 416.967(c). Light
work, in turn, refers to jobs in which an individual would be expected to “lift[]
no more than 20 pounds,” but might also be required to perform a “good deal
of walking or standing.” 20 C.F.R. § 416.967(b).
      The regulations also distinguish between exertional and nonexertional
limitations. See 20 C.F.R. § 404.1569a. A limitation is exertional if it affects
an individual’s “ability to meet the strength demands of jobs,” such as “sitting,
standing, walking, lifting, carrying, pushing, and pulling.”           20 C.F.R.
§ 404.1569a(a). A limitation is nonexertional if it affects an individual’s ability
with respect to the demands of the job that are not related to strength, such as
difficulties in functioning caused by anxiety, depression, or problems with
concentration. See 20 C.F.R. § 404.1569a(c). Thus, it is a claimant’s exertional
limitations, rather than his or her nonexertional limitations, that affect a
claimant’s ability to perform a particular classification of work under the
regulations. See 20 C.F.R. §§ 4404.1569a, 416.967.
      In her disability application, Vaughn claimed that she could not work
solely because of her mental impairments. At her hearing, Vaughn testified
only about those impairments and the nonexertional limitations that resulted
from those impairments. Moreover, Vaughn’s medical records did not provide
any indication that Vaughn suffered from a medically determinable physical
impairment or from a substantial physical limitation. Accordingly, the ALJ’s
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determination that Vaughn was unable to perform her past relevant work due
to her nonexertional limitation, but had the capacity to perform alternative
work at a higher exertional level, was both logically consistent and supported
by substantial evidence.
      Finally, despite failing to articulate any exertional limitation during her
hearing or in her initial application documentation, Vaughn argues that the
medical records she submitted subsequent to the ALJ’s determination
demonstrate that she was incapable of performing medium work. Specifically,
Vaughn points to a notation referencing her “back pain” in a supplemental
record that she submitted to the Appeals Council in an effort to seek further
administrative review of the ALJ’s decision. This reference was made during
Vaughn’s visit to an urologist in the context of an overview of Vaughn’s medical
history. Other than the mere mention of the existence of back pain, however,
the record provides no information regarding the degree of its severity or its
effect on Vaughn’s ability to function. The Appeals Council considered this
evidence and determined that it did not provide a basis for changing the ALJ’s
decision. Substantial evidence supports this determination.
      The Commissioner need only include limitations in the RFC
determination that are supported by the evidence in the record. See Muse v.
Sullivan, 925 F.2d 785, 790 (5th Cir.1991); Hames v. Heckler, 707 F.2d 162,
165-66 (5th Cir. 1983). Moreover, “if sufficient medical or other evidence is not
provided by the claimant, [the Commissioner] is required to make a decision
based on the information available.” Jones v. Bowen, 829 F.2d 524, 526 (5th
Cir. 1987) (citing 20 C.F.R. § 404.1516). Although, the Commissioner may be
required to seek further information regarding a claimant’s disability under
certain circumstances, isolated references to a limitation without more do not
implicate this duty. See id.; see also Pierre v. Sullivan, 884 F.2d 799, 803 (5th
Cir. 1989).
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      Here, the mere reference to back pain that was noted by Vaughn’s
urologist did not indicate whether Vaughn was in any way limited in her ability
to physically exert herself. Further, records memorializing Vaughn’s follow-
up sessions with her urologist continue to reference the urinary issues she was
experiencing but do not include any mention of ongoing back pain. Indeed,
there is no evidence in the administrative record that Vaughn ever sought any
medical treatment for this issue. Accordingly, the Appeals Council did not err
in determining that Vaughn’s additional medical evidence failed to provide a
basis to alter the ALJ’s decision. The determination that Vaughn was capable
of performing work at a medium exertional level was supported by substantial
evidence.
                               CONCLUSION
      For the reasons above, the judgment of the district court is
AFFIRMED.




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