Spinos v. Social Security Administration

Filing 18

ORDER ADOPTING 16 REPORT AND RECOMMENDATIONS: IT IS HEREBY ORDERED that the Court OVERRULES Plaintiff's objections and ADOPTS the Magistrate Judge's recommendation; IT IS FURTHER ORDERED that the Plaintiff's 14 Motion for Summary Judgment is DENIED, the Commissioner's 15 cross-motion is GRANTED, and Plaintiff's case is DISMISSED WITH PREJUDICE. Signed by Judge Nannette Jolivette Brown on 2/15/2018.(mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TROY ANTHONY SPINOS

CIVIL ACTION

VERSUS

NO. 17-1929

SOCIAL SECURITY ADMINISTRATION

SECTION: “G”(3)

ORDER AND REASONS
Before the Court are Plaintiff Troy Anthony Spinos’s (“Plaintiff”) objections1 to the Report
and Recommendation of the United States Magistrate Judge assigned to the case.2 Plaintiff filed
this action pursuant to 42 U.S.C. § 405(g) for review of the final decision of Defendant, the Acting
Commissioner of the Social Security Administration (the “Commissioner” or “Defendant”),
denying his claim for supplemental security income (“SSI”) under Titles II and XVI of the Social
Security Act (the “Act”).3 The Magistrate Judge recommended that the Plaintiff’s motion for
summary judgment be denied, the Commissioner’s cross-motion for summary judgment be
granted, and Plaintiff’s case be dismissed with prejudice.4 Having considered Plaintiff’s
objections, the Magistrate Judge’s Report and Recommendation, the record, and the applicable
law, for the following reasons, the Court will overrule Plaintiff’s objections, adopt the Magistrate
Judge’s Report and Recommendation, and dismiss this action with prejudice.

1

Rec. Doc. 17.

2

Rec. Doc. 16.

3

Rec. Doc. 1.

4

Rec. Doc. 16 at 12.

I. Background
A.

Procedural History
Plaintiff filed an application for SSI on September 19, 2013, alleging that he had been

disabled since December 31, 2008, due to mental health problems, back/knee pain, a tumor in his
right shoulder, and a bullet in his liver.5 On November 24, 2015, Plaintiff amended his application
to allege a disability onset date of September 19, 2013.6
After Plaintiff’s claims were denied at the agency level, Plaintiff requested a hearing before
an Administrative Law Judge (“ALJ”), which was held on May 18, 2015.7 Plaintiff and a
vocational expert testified at the hearing.8 During the hearing, the ALJ ordered a consultative
mental health examination by a psychiatrist and ordered a follow-up administrative hearing.9 A
second hearing was held on November 24, 2015.10 Plaintiff and a vocational expert testified at the
second hearing.11
On December 29, 2015, the ALJ issued a decision denying Plaintiff’s application for
benefits.12 The ALJ analyzed Plaintiff’s claim pursuant to the five-step sequential evaluation

5

Adm. Rec. at 193–99, 212.

6

Id. at 207.

7

Id. at 75–100.

8

Id.

9

Id. at 94–95

10

Id. at 38–74.

11

Id.

12

Id. at 18–33.

2

process.13 At step one, the ALJ concluded that Plaintiff had not engaged in substantial gainful
activity since September 19, 2013, the alleged onset date.14 At step two, the ALJ concluded that
Plaintiff has the following severe impairments: “displaced overlapping comminuted right
clavicular fracture with osteopenia, multilevel degenerative disc disease of the lumbar spine with
spondylolisthesis, osteoarthrosis of the right knee and spurring of the bilateral knees, personality
disorder, schizoaffective disorder, mood disorder with anxiety, and obesity.”15 At step three, the
ALJ found that Plaintiff did not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments under the regulations.16

13

The five-step analysis requires consideration of the following:

First, if the claimant is currently engaged in substantial gainful employment, he or she is found not disabled.
20 C.F.R. §§ 404.1520(b), 416.920(b).
Second, if it is determined that, although the claimant is not engaged in substantial employment, he or she
has no severe mental or physical impairment which would limit the ability to perform basic work-related functions,
the claimant is found not disabled. Id. §§ 404.1520(c), 416.920(c).
Third, if an individual’s impairment has lasted or can be expected to last for a continuous period of twelve
months and is either included in a list of serious impairments in the regulations or is medically equivalent to a listed
impairment, he or she is considered disabled without consideration of vocational evidence. Id. §§ 404.1520(d),
416.920(d).
Fourth, if a determination of disabled or not disabled cannot be made by these steps and the claimant has a
severe impairment, the claimant’s residual functional capacity and its effect on the claimant’s past relevant work are
evaluated. If the impairment does not prohibit the claimant from returning to his or her former employment, the
claimant is not disabled. Id. §§ 404.1520(e), 416.920(e).
Fifth, if it is determined that the claimant cannot return to his or her former employment, then the claimant’s
age, education, and work experience are considered to see whether he or she can meet the physical and mental demands
of a significant number of jobs in the national economy. If the claimant cannot meet the demands, he or she will be
found disabled. Id. §§ 404.1520(f)(1), 416.920(f)(1). To assist the Commissioner at this stage, the regulations provide
certain tables that reflect major functional and vocational patterns. When the findings made with respect to a claimant’s
vocational factors and residual functional capacity coincide, the rules direct a determination of disabled or not
disabled. Id. § 404, Subpt. P, App. 2, §§ 200.00-204.00, 416.969.
14

Adm. Rec. at 20.

15

Id.

16

Id. at 21.

3

At step four, the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to
perform medium work with the following restrictions: (1) Plaintiff could lift and/or carry
(including pushing or pulling) 50 pounds occasionally and 25 pounds frequently; (2) he could stand
and/or walk for six hours per eight-hour workday, and sit for six hours per eight-hour workday;
(3) he could frequently climb ramps, stairs, ladders, ropes, and scaffolds; (4) he could frequently
balance, stoop, kneel crouch, and crawl; (5) he could not tolerate overhead reaching with the right
dominant upper extremity or exposure to cold; and (6) he was limited to simple routine tasks
commensurate with a specific vocational preparation level of no greater than two.17 At step four,
the ALJ also found that Plaintiff had no past relevant work.18 At step five, the ALJ concluded that
considering Plaintiff’s age, education, work experience, and residual functional capacity, there
were jobs that existed in significant numbers in the national economy that Plaintiff could perform
as a janitor/cleaner, maid/housekeeper, or stock clerk/order filler.19 Therefore, the ALJ determined
that Plaintiff was not disabled from September 19, 2013, through the date of the decision.20
Plaintiff requested review by the Appeals Council.21 The ALJ’s decision became the final
decision of the Commissioner for purposes of this Court’s review after the Appeals Council denied
review on January 3, 2017.22 On March 7, 2017, Plaintiff filed a complaint seeking judicial review

17

Id. at 24.

18

Id. at 31.

19

Id. at 31–32.

20

Id. at 32.

21

Id. at 14.

22

Id. at 1–6.

4

pursuant to Section 405(g) of the Act.23 This matter was referred to a United States Magistrate
Judge pursuant to 28 U.S.C. § 636(b) and Local Rule 73.2(B). On May 25, 2017, the Commissioner
answered the complaint.24
On July 11, 2017, Plaintiff filed a motion for summary judgment arguing that the ALJ’s
RFC determination was not supported by substantial evidence.25 On August 25, 2017, the
Commissioner filed a cross-motion for summary judgment, arguing that substantial evidence
supports the ALJ’s determination.26
B.

The Magistrate Judge’s Report and Recommendation
On October 24, 2017, the Magistrate Judge recommended that the Plaintiff’s motion for

summary judgment be denied, the Commissioner’s cross-motion for summary judgment be
granted, and Plaintiff’s case be dismissed with prejudice.27 The Magistrate Judge noted that
Plaintiff only raised one issue on appeal: whether substantial evidence supported the ALJ’s RFC
determination.28 Specifically, Plaintiff argued that the ALJ erred in affording little weight to the
opinion of a consultative psychiatrist, Dr. Donna M. Mancuso, who found that Plaintiff had marked
limitations in carrying out complex instructions, making judgments on complex work-related
decisions, interacting with others, and responding appropriately to usual work situations and to

23

Rec. Doc. 1.

24

Rec. Doc. 10.

25

Rec. Doc. 14.

26

Rec. Doc. 15.

27

Rec. Doc. 16 at 12.

28

Id. at 6.

5

changes in routine work settings.29 The Magistrate Judge rejected this argument, finding that “a
review of the record reveals that it contains several physicians’ reports of normal mental status”
consistent with the ALJ’s determination that Plaintiff could perform simple, routine, and unskilled
work.30 The Magistrate Judge also noted that Plaintiff’s daily activities demonstrate that he is
mentally capable of performing simple, routine, and unskilled work.31
Moreover, the Magistrate Judge found that the ALJ’s RFC determination was consistent
with Dr. Mancuso’s opinion that Plaintiff could not perform complex, non-routine work.32
Furthermore, even if the ALJ had adopted a restriction on interacting with others, the Magistrate
Judge found that such a restriction would not have altered the decision because the vocational
expert testified that Plaintiff could perform jobs as a janitor/cleaner, maid/housekeeper, and stock
clerk/order filler with such a restriction.33
The Magistrate Judge noted that Dr. Mancuso opined that Plaintiff was “impaired” in his
recent memory and concentration; ability to relate to others; ability to maintain attention and
perform simple repetitive tasks for two hour blocks of time; ability to sustain effort and persist at
a normal pace over the course of a forty hour week; ability to understand, remember, and follow
simple commands; and ability to tolerate the stress associated with day to day work activity.34

29

Id. at 6, 8.

30

Id. 6 (citing Adm. Rec. at 381–91, 404, 500, 505).

31

Id. at 7.

32

Id.

33

Id. at 8–9 (citing Adm. Rec. at 32, 70–71).

34

Id. at 9 (citing Adm. Rec. at 449–55).

6

However, the Magistrate Judge found that this opinion was inherently inconsistent with Dr.
Mancuso’s same-day opinion that Plaintiff had no more than mild limitations with simple work.35
The Magistrate Judge rejected Plaintiff’s argument that the ALJ should have contacted Dr.
Mancuso for clarification of her opinion because contacting Dr. Mancuso was unnecessary in light
of the other record evidence.36
Finally, the Magistrate Judge was not persuaded by Plaintiff’s argument that the ALJ did
not account for moderate limitations in concentration, persistence, or pace in the RFC
assessment.37 The Magistrate Judge noted that Plaintiff cited to authority from outside the Fifth
Circuit for the proposition that an RFC for simple, unskilled work does not account for moderate
limitations in concentration, persistence, or pace.38 However, to the contrary, the Fifth Circuit has
held that moderate deficiencies of concentration, persistence, or pace are accounted for with an
RFC restriction on the ability to understand, remember, and carry out only routine step
instructions.39 Therefore, because the psychiatric review technique is only a broad threshold
inquiry, the Magistrate Judge determined that the ALJ properly performed a more detailed
evaluation of Plaintiff’s mental limitations in her RFC discussion, pursuant to Social Security

35

Id.

36

Id. at 11.

37

Id.

38

Id.

39

Id. at 11–12 (citing Herrera v. Comm’r of Soc. Sec’y, 406 F. Appx. 899, 904 (5th Cir. 2010) (unpublished).

7

Regulation 96-8p.40 Accordingly, the Magistrate Judge found that substantial evidence supported
the ALJ’s RFC determination.41
II. Objections
A.

Plaintiff’s Objections
Plaintiff timely filed objections to the Magistrate Judge’s Report and Recommendation on

November 7, 2017.42 Plaintiff argues that the ALJ’s RFC finding is not supported by substantial
evidence.43 He contends that the ALJ failed to properly weigh the opinion evidence of record and
failed to fully and fairly develop the record.44
Plaintiff asserts that the Magistrate Judge sidestepped the issue of the ALJ’s failure to
properly consider the opinion of Dr. Mancuso, instead focusing on other physician reports
indicating that Plaintiff had a normal mental status.45 Plaintiff contends that “[s]uch an emphasis
ignores the observations made by Dr. Mancuso (the Agency’s own expert appointed to evaluate
Plaintiff’s mental impairments and limitations) including mildly impaired concentration, impaired
attention, and poor fund of knowledge.”46

40

Id. at 12 (citing SSR 96-8p, 1996 WL 374184 at *4).

41

Id.

42

Rec. Doc. 17.

43

Id. at 1.

44

Id.

45

Id. at 1–2.

46

Id. at 2.

8

Moreover, Plaintiff argues that the Magistrate Judge erred in finding that the ALJ did not
need to re-contact Dr. Mancuso to clarify portions of her opinion and the inconsistencies contained
therein.47 He asserts that the ALJ acknowledged a gap in the evidence at the first hearing when she
indicated that she wanted Plaintiff to undergo a consultative psychiatric examination, and the gap
in evidence remained because the ALJ rejected Dr. Mancuso’s opinion without seeking
clarification.48
Finally, Plaintiff contends that the Magistrate Judge and ALJ mischaracterized Plaintiff’s
volunteer work, which he contends was “highly accommodated” and performed on a part-time
basis.49 Specifically, Plaintiff argues that “[i]n emphasizing ‘totally disabled,’ the ALJ and the
Magistrate Judge appear to conflate Plaintiff’s ability to engage in highly accommodated work
activity on a part-time basis with the ability to engage in substantial gainful activity (“SGA”) on a
regular and continuing basis.”50
B.

The Commissioner’s Response
The Commissioner did not file a brief in opposition to Plaintiff’s objections despite

receiving electronic notice of the filing posted on November 7, 2017.

47

Id.

48

Id.

49

Id. at 3.

50

Id.

9

III. Standard of Review
A.

Review of the Magistrate Judge’s Report and Recommendation
In accordance with Local Rule 73.2, this case was referred to a Magistrate Judge to provide

a Report and Recommendation. A district judge “may accept, reject, or modify the recommended
disposition” of a magistrate judge on a dispositive matter.51 The district judge must “determine de
novo any part of the [Report and Recommendation] that has been properly objected to.”52 A district
court’s review is limited to plain error of parts of the report which are not properly objected to.53
B.

Standard of Review of Commissioner’s Final Decision on SSI Benefits
Under 42 U.S.C. § 405(g) the district court has the power to enter “a judgment affirming,

modifying, or reversing the decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing.”54 Appellate review of the Commissioner’s denial of SSI
benefits is limited to determining whether the decision is supported by substantial evidence in the
record and whether the proper legal standards were used in evaluating the evidence.55 “Substantial
evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”56 The Court must review the

51

Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).

52

Id.

53

See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc), superseded
by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending time to file objections from ten to fourteen days).
54

42 U.S.C. § 405(g).

55
Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005); Waters v. Barnhart, 276 F.3d 716, 716 (5th Cir.
2002); Loza v. Apfel, 219 F.3d 378, 390 (5th Cir. 2000); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990).
56

Richardson v. Perales, 402 U.S. 389, 401 (1971); Perez, 415 F.3d at 461; Loza, 219 F.3d at 393; Villa,
895 F.2d at 1021–22 (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983); Randall v. Sullivan, 956 F.2d
105, 109 (5th Cir. 1992)).

10

whole record to determine if such evidence exists.57 However, the district court cannot “reweigh
the evidence in the record, try the issues de novo, or substitute its judgment for the
Commissioner’s.”58 The ALJ is entitled to make any finding that is supported by substantial
evidence, regardless of whether other conclusions are also permissible.59 A court “weigh[s] four
elements of proof when determining whether there is substantial evidence of disability: (1)
objective medical facts; (2) diagnoses and opinions of treating and examining physicians; (3) the
claimant’s subjective evidence of pain and disability; and (4) his age, education, and work
history.”60
IV. Law and Analysis
A.

Applicable Law to Qualification for SSI Benefits
To be considered disabled, a claimant must show that he is unable “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 twelve months.”61 The Commissioner has promulgated
regulations that provide procedures for evaluating a claim and determining disability.62 The
regulations include a five-step evaluation process for determining whether an impairment

57

Singletary v. Bowen, 798 F.2d 818, 822–23 (5th Cir. 1986).

58

Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000).

59

See Arkansas v. Oklahoma, 503 U.S. 91 (1992).

60

Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995).

61

42 U.S.C. § 423(d)(1)(A).

62

20 C.F.R. §§ 404.1501 to 404.1599 & Apps., §§ 416.901 to 416.998 (2008).

11

constitutes a disability, and the five-step inquiry terminates if the Commissioner finds at any step
that the claimant is or is not disabled.63 The claimant has the burden of proof under the first four
parts of the inquiry, and if he successfully carries this burden, the burden shifts to the
Commissioner at step five to show that the claimant is capable of engaging in alternative
substantial gainful employment, which is available in the national economy.64
In the instant case, the ALJ concluded that Plaintiff has the following severe impairments:
“displaced overlapping comminuted right clavicular fracture with osteopenia, multilevel
degenerative disc disease of the lumbar spine with spondylolisthesis, osteoarthrosis of the right
knee and spurring of the bilateral knees, personality disorder, schizoaffective disorder, mood
disorder with anxiety, and obesity.”65 The ALJ found that Plaintiff did not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
impairments under the regulations.66 The ALJ found that Plaintiff had the RFC to perform medium
work with the following restrictions: (1) Plaintiff could lift and/or carry (including pushing or
pulling) 50 pounds occasionally and 25 pounds frequently; (2) he could stand and/or walk for six
hours per eight-hour workday, and sit for six hours per eight-hour workday; (3) he could frequently
climb ramps, stairs, ladders, ropes, and scaffolds; (4) he could frequently balance, stoop, kneel
crouch, and crawl; (5) he could not tolerate overhead reaching with the right dominant upper
extremity or exposure to cold; and (6) he was limited to simple routine tasks commensurate with

63

Id. §§ 404.1520, 416.920; Perez, 415 F.3d at 461.

64

Perez, 415 F.3d at 461; Newton, 209 F.3d at 453.

65

Adm. Rec. at 20.

66

Id. at 21.

12

a specific vocational preparation level of no greater than two.67 The ALJ also found that Plaintiff
had no past relevant work.68 However, the ALJ concluded that considering Plaintiff’s age,
education, work experience, and residual functional capacity, there were jobs that existed in
significant numbers in the national economy that Plaintiff could perform as a janitor/cleaner,
maid/housekeeper, or stock clerk/order filler.69 Therefore, the ALJ determined that Plaintiff was
not under a disability from September 19, 2013, through the date of the decision.70 The Court may
disturb that finding only if the ALJ lacked “substantial evidence” to support it.71
B.

Was the ALJ’s RFC determination supported by substantial evidence?
Plaintiff raises one issue on appeal: whether substantial evidence supports the ALJ’s RFC

determination. The Magistrate Judge found that the RFC determination was based on substantial
evidence.72 Plaintiff objects, arguing that the RFC determination was not based on substantial
evidence because the ALJ failed to properly weigh the opinion evidence of record and failed to
fully and fairly develop the record.73 Specifically, Plaintiff asserts that the ALJ failed to properly
consider the opinion of Dr. Mancuso, the consultative psychiatrist appointed by the Commissioner

67

Id. at 24.

68

Id. at 31.

69

Id. at 31–32.

70

Id. at 32.

71

See Perez, 415 F.3d at 461

72

Rec. Doc. 16.

73

Rec. Doc. 17.

13

to evaluate Plaintiff’s mental impairments and limitations, who found that Plaintiff had “mildly
impaired concentration, impaired attention, and poor fund of knowledge.”74
The ALJ evaluated Dr. Mancuso’s opinion and determined that it was entitled to little
weight.75 Following her examination of Plaintiff on July 31, 2015, Dr. Mancuso opined that
Plaintiff’s ability to maintain attention and perform simple, repetitive tasks for two-hour blocks of
time would be impaired.76 Dr. Mancuso further opined that Plaintiff’s ability to understand,
remember, and follow simple commands would likely be “fair[ly] to mildly impaired” depending
on the clarity and simplicity level, and his ability to handle the stress and pressure associated with
day-to-day work activity would be impaired.77 Dr. Mancuso also found that Plaintiff had marked
limitations in all areas of social functioning.78 The ALJ found that these opinions were not
supported by substantial evidence because Plaintiff worked at a carwash three to five days per
week for four to eight hours each day, and his primary responsibility was to guide customers to
their proper places while their cars were being washed.79 The ALJ determined that the use of the
word “impaired” without further description was vague and inconsistent with the evidence
showing that Plaintiff was able to tolerate simple work routines.80 The ALJ noted that Dr. Mancuso

74

Id. at 2.

75

Adm. Rec. at 29.

76

Id. at 455.

77

Id.

78

Id. at 446.

79

Id. at 29.

80

Id.

14

only evaluated Plaintiff on one occasion, and based her opinions, in significant part, on the
subjective allegations made by Plaintiff.81 The ALJ further noted that the intensity of Plaintiff’s
subjective allegations regarding his hallucinations varied based on the setting and/or the
examiner.82 Accordingly, the ALJ concluded that Dr. Mancuso’s opinion was entitled to little
weight.83
The Fifth Circuit has held that “[t]he ALJ ‘is entitled to determine the credibility of medical
experts as well as lay witnesses and weigh their opinions accordingly.’”84 “[T]he ALJ is free to
reject the opinion of any physician when the evidence supports a contrary conclusion.”85 However,
“it is clear that the ALJ must consider all the record evidence and cannot ‘pick and choose’ only
the evidence that supports his position.”86 The ALJ considered and rejected Dr. Mancuso’s opinion
that Plaintiff’s ability to function in the work environment was severely limited.87 Furthermore, a
review of the medical records reveals that several physicians reported that Plaintiff’s mental status
was normal.88 Plaintiff argues that the ALJ should have reached the opposite conclusion in
evaluating his medical records, but he does not point to any evidence that the ALJ failed to

81

Id.

82

Id.

83

Id.

84

Ramirez v. Colvin, 606 F. App’x 775, 779 (5th Cir. 2015) (quoting Scott v. Heckler, 770 F.2d 482, 485 (5th
Cir. 1985)).
85

Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987) (citation omitted).

86

Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000).

87

Adm. Rec. at 29.

88

Id. at 381–91, 404, 500, 505.

15

evaluate. This Court cannot reweigh the evidence in the record or substitute its judgment for the
ALJ’s.89 Accordingly, the ALJ’s decision to accord little weight to the opinion of Dr. Mancuso is
supported by substantial evidence.
Plaintiff also argues that the ALJ should have contacted Dr. Mancuso to clarify her opinion.
In Cornett v. Astrue, the Fifth Circuit held that “[t]he Commissioner is required to recontact a
medical source when the evidence from the treating physician or psychologist or other medical
source is inadequate for the Commissioner to determine whether the claimant is disabled.”90 There,
the Fifth Circuit determined that the ALJ did not need to contact the plaintiff’s treating physician
for clarification regarding the work Plaintiff could do despite his impairments because the ALJ
had considered over 500 pages of medical evidence and at least two physicians had concluded that
Plaintiff’s impairments did not preclude him from performing certain work.91
Conversely, in Newton v. Apfel, the Fifth Circuit reversed the ALJ’s decision to deny
benefits because the record did not clearly establish the effect of Plaintiff’s condition on his ability
to work and the ALJ had not made additional contact with the treating physician.92 The Fifth
Circuit noted that reversal of an ALJ’s decision “is appropriate only if the applicant shows
prejudice from the ALJ’s failure to request additional information.”93 “Prejudice can be established
by showing that additional evidence would have been produced if the ALJ had fully developed the

89

Newton, 209 F.3d at 452.

90
261 F. App’x 644, 648 (5th Cir. 2008) (quoting 20 C.F.R. § 416.912(e) (internal quotation marks and
brackets omitted)).
91

Id. at 649.

92

Newton, 209 F.3d at 452.

93

Id. at 458.

16

record, and that the additional evidence might have led to a different decision.”94 In Newton, the
Fifth Circuit found that the plaintiff made a sufficient showing that additional evidence could have
been produced, if requested.95 The Fifth Circuit determined that “the ALJ erred when she found,
with virtually no meaningful analysis of the specific medical records, that omissions from the
treating specialist’s assessment or answers to interrogatories left gaps preventing a finding as to
the proper weight to accord [the specialist’s] opinion of [the plaintiff’s] residual functional
capacity.”96
In this case, Plaintiff asserts that the ALJ acknowledged a gap in the evidence at the first
hearing when she indicated that she wanted Plaintiff to undergo a consultative psychiatric
examination, and the gap in evidence remained because the ALJ rejected the consultative
psychiatric opinion of Dr. Mancuso without seeking clarification.97 During the first hearing, the
ALJ determined that an evaluation by a consultative psychiatrist was necessary because Plaintiff’s
psychiatric records did not “contain much detail,” and she stated that she wanted to get more
information regarding the symptoms Plaintiff was experiencing, how well Plaintiff’s medications
were working, and what kinds of problems Plaintiff was having.98 She also requested that the
psychiatrist provide an opinion about the kinds of work-related activities Plaintiff could perform

94

Id.

95

Id.

96

Id.

97

Rec. Doc. 17 at 2.

98

Adm. Rec. at 94–95.

17

with his diagnoses.99 Following the first hearing, Plaintiff was sent to Dr. Mancuso for a
consultative examination.
After the second hearing, the ALJ evaluated Dr. Mancuso’s opinion and determined that it
was entitled to little weight.100 Plaintiff argues that the gap in the evidence that the ALJ
acknowledged during the first hearing remained because after the second hearing the ALJ rejected
Dr. Mancuso’s opinion without contacting her for clarification. However, the ALJ also relied on
updated medical evidence from treating physicians in evaluating Plaintiff’s mental health
condition, which were not available during the first hearing.101 Specifically, the ALJ noted that Dr.
Calhoun described “Plaintiff’s complaints of voices as ‘somewhat vague per content,’” and Dr.
Clark noted that Plaintiff expressed command hallucinations to harm himself and others but that
the complaints were made with “a nonchalant attitude.”102 Furthermore, the ALJ noted that
Plaintiff reported no complaints to Dr. Foulks in November 2015.103 All of these medical reports
were from evaluations that occurred after the first hearing, where the ALJ determined that there
was a gap in the evidence.
Unlike in Newton, where the ALJ performed virtually no meaningful analysis of the
specific medical records, the ALJ thoroughly reviewed the opinion of Dr. Mancuso and concluded
that it was vague and inconsistent with the evidence showing that Plaintiff was able to tolerate

99

Id. at 95.

100

Id. at 29.

101

Id. at 28–29 (citing Exh. 16F Medical Evidence dated 5/19/2015 to 11/03/2015, from Metropolitan Human
Services District).
102

Id.

103

Id.

18

simple work routines.104 Moreover, the ALJ relied on the opinions of Plaintiff’s treating
physicians, which were updated after the first hearing when the ALJ found a gap in the evidence,
and Plaintiff’s daily activities in concluding that Plaintiff could tolerate simple, routine, and
unskilled work.105 Furthermore, Plaintiff has not demonstrated prejudice because he has not shown
that additional evidence would have been produced or that the additional evidence might have led
to a different decision. Therefore, Plaintiff has not demonstrated that the ALJ should have
contacted Dr. Mancuso for clarification.
V. Conclusion
For the foregoing reasons, the Court finds that the ALJ’s decision denying Plaintiff’s
application for SSI was based on substantial evidence. Accordingly,
IT IS HEREBY ORDERED that the Court OVERRULES Plaintiff’s objections and
ADOPTS the Magistrate Judge’s recommendation;
IT IS FURTHER ORDERED that the Plaintiff’s Motion for Summary Judgment is
DENIED, the Commissioner’s cross-motion is GRANTED, and Plaintiff’s case is DISMISSED
WITH PREJUDICE.

15th
NEW ORLEANS, LOUISIANA, this ____ day of February, 2018.
__________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

104

Adm. Rec. at 29.

105

Id. at 26–31.

19