Guillotte v. Social Security Administration

Filing 25

ORDER AND REASONS: IT IS HEREBY ORDERED that the Court OVERRULES IN PART Plaintiff's objections related to the assessment of Plaintiff's mental limitations and SUSTAINS IN PART Plaintiff's objections related to the assessment of Plain tiff's physical limitations; IT IS FURTHER ORDERED that the Court ADOPTS IN PART the Magistrate Judge's recommendation as to Plaintiff's mental limitations and REJECTS IN PART the Magistrate Judges recommendation as to Plaintiff's physical limitations; IT IS FURTHER ORDERED that the case is REMANDED to the ALJ for additional proceedings consistent with this opinion. Signed by Chief Judge Nannette Jolivette Brown on 2/13/2019.(mmv) (cc: SSA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CHANTEL LYNN GUILLOTTE

CIVIL ACTION

VERSUS

NO. 18-1467

NANCY BERRYHILL, ACTING COMMISSIONER
OF THE SOCIAL SECURITY ADMINISTRATION

SECTION: “G”(3)

ORDER AND REASONS
Before the Court are Plaintiff Chantel Lynn Guillotte’s (“Plaintiff”) objections 1 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 her claim for supplemental security income (“SSI”) under the Social
Security Act (the “Act”). 3 The parties filed cross-motions for summary judgment. 4 The Magistrate
Judge recommended that Plaintiff’s motion for summary judgment be denied, the Commissioner’s
motion for summary judgment be granted, the Administrative Law Judge’s (“ALJ”) decision
denying Plaintiff’s claim for SSI benefits be affirmed, and the case be dismissed with prejudice. 5
Plaintiff objects, arguing that the ALJ’s decision was not supported by substantial evidence. 6

1

Rec. Doc. 24.

2

Rec. Doc. 23.

3

Rec. Doc. 1.

4

Rec. Docs. 15, 21.

5

Rec. Doc. 23 at 15.

6

Rec. Doc. 24.

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 in part, sustain Plaintiff’s objections in part, adopt the Report and Recommendation in
part, reject the Report and Recommendation, and remand this action to the ALJ for additional
proceedings consistent with this opinion.
I. Background
A.

Procedural History
Plaintiff filed an application for SSI on February 25, 2013, alleging a disability onset date

of July 1, 1992. 7 Plaintiff alleged disability due to bipolar disorder/chemical imbalance/depression,
behavior disorder, and schizophrenia. 8 After Plaintiff’s claim was denied at the agency level,
Plaintiff requested a hearing before an ALJ, which was held on February 9, 2015. 9 On April 20,
2015, the ALJ issued a decision denying Plaintiff’s claim because she found that Plaintiff was not
disabled. 10
Plaintiff filed an appeal, and on July 27, 2016, the Appeals Council remanded the case to
the ALJ for consideration of new evidence. 11 Specifically, the evidence consisted of an MRI of the
lumbar spine performed in April 2015 and a nerve conduction study performed in March 2015.12

7

Adm. Rec. at 212.

8

Id.

9

Id. at 127–68.

10

Id. at 226–36.

11

Id. at 241–44.

12

Id. at 243.

2

The Appeals Council stated that, if warranted, the ALJ should “obtain additional evidence
concerning [Plaintiff’s] physical impairments” including “a consultative examination and medical
source statements about what [Plaintiff] can still do despite the impairments.” 13
The ALJ held a second hearing on November 4, 2016. 14 Plaintiff and a vocational expert
testified at the hearing. 15 The ALJ issued an opinion on March 27, 2017, in which she incorporated
the new evidence, and yet, she still found Plaintiff was not disabled. 16 The ALJ analyzed Plaintiff’s
claim pursuant to the five-step sequential evaluation process. 17 At step one, the ALJ concluded

13

Id. at 243.

14

Id. at 169–210.

15

Id.

16

Id. at 11–24.

17

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.

3

that Plaintiff had not engaged in substantial gainful activity since February 25, 2013, the
application date. 18 At step two, the ALJ concluded that Plaintiff has the following severe
impairments: “mood disorder; anxiety disorder; panic disorder; attention deficit hyperactivity
disorder; posttraumatic stress disorder; moderate carpal tunnel syndrome of the right wrist; low
average to borderline intellectual functioning; cervical spondylosis; and lumbar degenerative disc
disease.” 19 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. 20
At step four, the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to
perform a range of light work except that she can never climb ladders, ropes or scaffolds but can
occasionally climb ramps and stairs; can occasionally balance, stoop, crouch, kneel, and crawl;
cannot work with moving and/or dangerous machinery; cannot work at unprotected heights; and
cannot engage in commercial driving. 21 The ALJ determined that Plaintiff is limited to unskilled
work that involves routine, repetitive tasks and low stress work such as work that does not involve
strict production quotas or fast-paced work. 22 Furthermore, the ALJ found that Plaintiff cannot
have direct contact with the public but can have occasional and superficial interaction with

18

Adm. Rec. at 13.

19

Id.

20

Id. at 14.

21

Id. at 19.

22

Id.

4

supervisors and co-workers. 23 The ALJ added that due to Plaintiff’s moderate carpal tunnel
syndrome, Plaintiff is able to use her upper extremities for frequent gross and fine manipulation
(handling and fingering). 24
At step four, the ALJ also found that Plaintiff had no past relevant work. 25 At step five, the
ALJ determined that considering Plaintiff’s age, education, work experience, and RFC, there are
jobs that exist in significant numbers in the national economy that Plaintiff can perform.26
Specifically, the ALJ found that Plaintiff was capable of performing work as a housekeeper, stock
clerk/order filler, and inspector. 27 Therefore, the ALJ determined that Plaintiff was not disabled
since February 25, 2013, the date the application was filed. 28
Plaintiff requested review by the Appeals Council. 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 December 15, 2017. 29 On February 13, 2018, Plaintiff filed a complaint seeking judicial
review pursuant to Section 405(g) of the Act. 30 This matter was referred to a United States

23

Id.

24

Id.

25

Id. at 23.

26

Id.

27

Id. at 24.

28

Id.

29

Id. at 1–6.

30

Rec. Doc. 1.

5

Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rule 73.2(B). On May 22, 2018, the
Commissioner answered the complaint. 31
On July 9, 2018, Plaintiff filed a motion for summary judgment. 32 In the motion, Plaintiff
argued that substantial evidence did not support the following: the ALJ’s RFC determination as it
related to her mental limitations, the ALJ’s rejection of the opinion of Plaintiff’s treating
psychiatrist, Melanie Vega, M.D., and the ALJ’s failure to weigh the opinion of the consultative
examiner, William Fowler, Ph.D. 33 Plaintiff also argued that substantial evidence did not support
the ALJ’s assessment of Plaintiff’s physical limitations because there was no physical opinion
evidence in the record. 34 On September 19, 2018, the Commissioner filed a cross motion for
summary judgment, arguing that substantial evidence supported the ALJ’s decision. 35
B.

The Magistrate Judge’s Report and Recommendation
On December 5, 2018, the Magistrate Judge recommended that Plaintiff’s motion for

summary judgment be denied, the Commissioner’s motion for summary judgment be granted, the
ALJ’s decision denying Plaintiff’s claim for SSI benefits be affirmed, and the case be dismissed
with prejudice. 36 First, the Magistrate Judge found that substantial evidence supported the ALJ’s
RFC determination as it related to Plaintiff’s mental limitations and her rejection of the opinion of

31

Rec. Doc. 11.

32

Rec. Doc. 15.

33

Rec. Doc. 15-2 at 4–10.

34

Id. at 10–14.

35

Rec. Doc. 21.

36

Rec. Doc. 23 at 15.

6

Dr. Vega, Plaintiff’s treating psychiatrist. 37 The Magistrate Judge noted that Dr. Vega completed
a Mental Impairment Questionnaire on April 2, 2015, after treating Plaintiff on two occasions,
diagnosing Plaintiff with bipolar mood disorder, panic disorder, generalized anxiety disorder, and
PTSD, and finding that Plaintiff had extreme loss of mental functioning. 38 The Magistrate Judge
found that the ALJ had good cause to afford Dr. Vega’s opinion little weight because Dr. Vega’s
clinical findings did not reflect the extreme loss of mental functioning that Dr. Vega described in
the questionnaire. 39 The Magistrate Judge stated that “several and sporadic references to an
anxious mood do not diminish [Dr.] Vega’s and other physician’s observations throughout the
record that plaintiff ‘has a normal mood and affect. Her behavior is normal. Judgment and thought
content normal.’” 40 Furthermore, the Magistrate Judge found that these observations directly
contradict Dr. Vega’s claims that Plaintiff had a complete loss of the ability to function
appropriately with others. 41 Therefore, the Magistrate Judge determined that the ALJ was within
her discretion to resolve this conflict in the evidence and reject Dr. Vega’s finding that Plaintiff
had extreme loss of mental functioning. 42

37

Id. at 6–12.

38

Id. at 6 (citing Adm. Rec. at 940–46).

39

Id. at 8 (citing Adm. Rec. at 1269, 1287, 1346, 1351).

40

Id. at 10 (quoting Adm. Rec. at 979, 1287, 1269, 1346, 1351, 1518, 1529).

41

Id.

42

Id.

7

The Magistrate Judge also found Plaintiff’s argument that the ALJ failed to weigh the
opinion of the consultative examiner Dr. Fowler unavailing. 43 Although the ALJ did not explicitly
assign a level of “weight” to Dr. Fowler’s opinion, the Magistrate Judge determined that the ALJ
gave due consideration to Dr. Fowler’s report. 44 The Magistrate Judge stated that the ALJ fully
incorporated Dr. Fowler’s examination into the RFC determination by finding that Plaintiff could
not perform work that involved strict quotas, direct contact with the public, more than low stress,
or more than occasional interaction with supervisors and co-workers. 45 Therefore, even assuming
that the ALJ erred by failing to state the specific “weight” she afforded to Dr. Fowler’s opinion,
the Magistrate Judge found that Plaintiff had not shown that she was prejudiced by the absence of
such an articulation. 46
Next, the Magistrate Judge found that substantial evidence supported the ALJ’s assessment
of Plaintiff’s physical limitations. 47 The Magistrate Judge found Plaintiff’s argument that the ALJ
erred by failing to order a consultative examination unavailing because “the ALJ’s RFC
assessment is not restricted to merely selecting and endorsing an existing medical opinion.” 48
Contrary to Plaintiff’s assertion that there was no evidence in the record regarding Plaintiff’s level
of physical functioning, the Magistrate Judge found numerous medical examinations containing

43

Id. at 11.

44

Id.

45

Id. at 12.

46

Id.

47

Id.

48

Id. at 13.

8

physical clinical findings. 49 Specifically, the Magistrate Judge noted that on February 19, 2016,
following an examination for lumbosacural radiculopathy, Dr. Casey Murphy observed full range
of motion and normal neurological functioning, including normal extremity reflexes and normal
strength, despite some tenderness and swelling in Plaintiff’s sacroiliac joint. 50
Similarly, on August 23, 2015, following an examination for pelvic pain, Dr. Thomas
Falterman observed general full range of motion, and a nurse practitioner also observed a general
full range of motion on April 8, 2015. 51 Further, contrary to Plaintiff’s testimony that she was
unable to place and remove a plastic ring for incontinence issues because of muscle spasms,
numbness, and locking up in her hands and legs, the Magistrate Judge noted that Plaintiff needed
help with her personal care in October 2016 because she had been involved in a car accident and
there was no evidence those symptoms persisted long enough to satisfy the one-year duration
requirement. 52 Therefore, the Magistrate Judge determined that the record contains sufficient
evidence to demonstrate that Plaintiff’s symptoms “did not raise the requisite suspicion to prompt
the expenditure of government resources to order a consultative examination.” 53
Finally, the Magistrate Judge found Plaintiff’s argument that the ALJ did not comply with
the Appeals Council’s remand order unavailing because the Appeals Council instructed the ALJ

49

Id. (citing Adm. Rec. at 979, 1167, 1170, 1118).

50

Id. (citing Adm. Rec. at 1167, 1169, 1170).

51

Id. at 13–14 (citing Adm. Rec. at 979, 1118).

52

Id. at 14 (citing Adm. Rec. at 181, 192).

53

Id. at 14 (citing Adm. Rec. at 181, 192, 797, 1118, 1167, 1170).

9

to order a consultative examination “if warranted and available.” 54 Accordingly, the Magistrate
Judge concluded that the Appeals Council did not mandate a consultative examination, and the
ALJ exercised her discretion in declining to order one. 55 For these reasons, the Magistrate Judge
recommended that Plaintiff’s motion for summary judgment be denied, the Commissioner’s
motion for summary judgment be granted, the ALJ’s decision denying Plaintiff’s claim for SSI
benefits be affirmed, and the case be dismissed with prejudice. 56
II. Objections
A.

Plaintiff’s Objections
Plaintiff timely filed objections to the Magistrate Judge’s Report and Recommendation. 57

First, Plaintiff asserts that “[t]he Magistrate Judge’s finding that the ALJ properly assessed the
opinion of Plaintiff’s treating physician should be rejected, as the ALJ did not provide reasons
supported by the evidence for the weight accorded.” 58
Next, Plaintiff argues that the Court should reject the Magistrate Judge’s finding that the
ALJ was entitled to rely on the clinical findings made during various physical examinations to
make an RFC determination. 59 Plaintiff contends that “[t]he ALJ is not required to make an RFC
finding which is a carbon copy of any one medical opinion, but generally, an RFC must have some

54

Id. at 15 (quoting Adm. Rec. at 243).

55

Id.

56

Id.

57

Rec. Doc. 24.

58

Id. at 1.

59

Id.

10

medical opinion support as a functional base.” 60 Plaintiff asserts that the RFC determination made
“without any medical support is essentially the ALJ substituting her own assessment of the
evidence for that of a medical source.” 61 Furthermore, Plaintiff argues that the ALJ cannot
independently determine Plaintiff’s RFC without some evidence of the effect of her conditions on
her ability to work. 62 In this case, Plaintiff contends that the only physical examination evidence
in the record does not contain a functional evaluation. 63 Therefore, Plaintiff contends that there is
not substantial evidence in the record to support the ALJ’s RFC determination. 64
Plaintiff contends that the Fifth Circuit’s decision in Taylor v. Astrue illustrates a rare
example of a case where an ALJ can make an RFC determination without a medical opinion.65
Plaintiff notes that in Taylor, the plaintiff’s MRIs were normal, other objective testing was
unremarkable, and a doctor found no anatomical reason for the plaintiff’s pain. 66 Plaintiff asserts
that this case is distinguishable from Taylor because an MRI of Plaintiff’s back revealed bulging
and moderate foraminal narrowing with some desiccation of the L1–L2 disc, which impacted the
right ventral thecal sac. 67 Plaintiff notes that her cervical spine is also affected with spondylosis at

60

Id. at 2.

61

Id. (citing 20 C.F.R. § 404.1519a; Sun v. Colvin, 793 F.3d 502, 509 (5th Cir. 2012); Ware v. Schweiker,
651 F.2d 408, 414 (5th Cir. 1981)).
62

Id. at 3 (citing Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995)).

63

Id.

64

Id.

65

Id. (citing 706 F.3d 600, 602–03 (5th Cir. 2012)).

66

Id.

67

Id. at 3–4 (citing Adm. Rec. at 1171).

11

C3–C4 and C4–C5, with further narrowing at C4–C5. 68 Further, Plaintiff notes that some
desiccation was found in the thoracic spine at T6–T7 and T7–T8. 69 Plaintiff argues that these
findings were enough to warrant some medical opinion on the effect of these conditions on her
ability to work. 70 Plaintiff argues that the ALJ failed to properly develop the record, and these
errors warrant remand of the case to the ALJ for additional administrative proceedings. 71
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.
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. 72 The district judge must “determine
de novo any part of the [Report and Recommendation] that has been properly objected to.” 73 A

68

Id. at 4 (citing Adm. Rec. at 1171).

69

Id. (citing Adm. Rec. at 1171).

70

Id. (citing Ripley, 67 F.3d at 557).

71

Id.

72

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

73

Id.

12

district court’s review is limited to plain error of parts of the report which are not properly objected
to. 74
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.” 75 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. 76 “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.” 77 The Court must review the
whole record to determine if such evidence exists. 78 However, the district court cannot “reweigh
the evidence in the record, try the issues de novo, or substitute its judgment for the
Commissioner’s.” 79 The ALJ is entitled to make any finding that is supported by substantial
evidence, regardless of whether other conclusions are also permissible. 80 A court “weigh[s] four

74

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).
75

42 U.S.C. § 405(g).

76

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).
77
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)).
78

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

79

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

80

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

13

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.” 81
The Court notes that both Plaintiff and the Commissioner moved for summary judgment.
The standard of review applicable to such motions requires that a moving party establish that there
is no genuine issue of material fact such that the moving party is entitled to judgment as a matter
of law. 82 Under 42 U.S.C. § 405(g), however, this Court may examine only the pleadings and the
record relied upon by the ALJ. Thus, there cannot generally be a disputed issue of fact before the
Court in Social Security appeals. 83 Instead, “[t]he issue is whether the action of the Secretary is
supported by the Record.” 84 The Fifth Circuit has regularly allowed district courts to rule on Social
Security disputes through the summary judgment procedure, when “the district court has
adequately reviewed the record and based its judgment on a finding of substantial evidence in the
administrative record.” 85
IV. Law and Analysis
A.

Applicable Law to Qualification for SSI Benefits

81

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

82

Error! Main Document Only.Fed. R. Civ. P. 56(c).

83

Error! Main Document Only.See Lovett v. Schweiker, 667 F.2d 1, 2 (5th Cir. 1981).

84

Error! Main Document Only.Id. (citing Igonia v. Califano, 568 F.2d 1383, 1389 (D.C. Cir. 1977)).

85
Error! Main Document Only. Id.; see also, e.g., Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993)
(setting forth both the summary judgment and substantial evidence standards of review).

14

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.” 86 The Commissioner has promulgated
regulations that provide procedures for evaluating a claim and determining disability. 87 The
regulations include a five-step evaluation process for determining whether an impairment
constitutes a disability, and the five-step inquiry terminates if the Commissioner finds at any step
that the claimant is or is not disabled. 88 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. 89
In this case, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since February 25, 2013, the application date. 90 The ALJ determined that Plaintiff has the
following severe impairments: “mood disorder; anxiety disorder; panic disorder; attention deficit
hyperactivity disorder; posttraumatic stress disorder; moderate carpal tunnel syndrome of the right
wrist; low average to borderline intellectual functioning; cervical spondylosis; and lumbar

86

42 U.S.C. § 423(d)(1)(A).

87

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

88

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

89

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

90

Adm. Rec. at 13.

15

degenerative disc disease.” 91 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. 92
The ALJ determined that Plaintiff had the RFC to perform a range of light work except that
she can never climb ladders, ropes or scaffolds but can occasionally climb ramps and stairs; can
occasionally balance, stoop, crouch, kneel, and crawl; cannot work with moving and/or dangerous
machinery; cannot work at unprotected heights; and cannot engage in commercial driving. 93 The
ALJ determined that Plaintiff is limited to unskilled work that involves routine, repetitive tasks
and to low stress work such as work that does not involve strict production quotas or fast-paced
work. 94 Furthermore, the ALJ found that Plaintiff cannot have direct contact with the public but
can have occasional and superficial interaction with supervisors and co-workers. 95 The ALJ added
that due to Plaintiff’s carpal tunnel syndrome, Plaintiff is able to use her upper extremities for
frequent gross and fine manipulation (handling and fingering). 96
The ALJ also found that Plaintiff had no past relevant work. 97 However, considering
Plaintiff’s age, education, work experience, and RFC, the ALJ determined that there are jobs that

91

Id.

92

Id. at 14.

93

Id. at 19.

94

Id.

95

Id.

96

Id.

97

Id. at 23.

16

exist in significant numbers in the national economy that Plaintiff can perform. 98 Specifically, the
ALJ found that Plaintiff was capable of performing work as a housekeeper, stock clerk/order filler,
and inspector. 99 Therefore, the ALJ determined that Plaintiff was not disabled since February 25,
2013, the date the application was filed. 100 The Court may disturb that finding only if the ALJ
lacked “substantial evidence” to support it. 101
B.

Does substantial evidence support the ALJ’s RFC determination as to Plaintiff’s mental
limitations and her rejection of the opinion of Plaintiff’s treating psychiatrist Dr.
Melanie Vega?
The Magistrate Judge found that substantial evidence supported the ALJ’s RFC

determination as to Plaintiff’s mental limitations and her rejection of the opinion of Dr. Vega,
Plaintiff’s treating psychiatrist. 102 Plaintiff objects, arguing that “[t]he Magistrate Judge’s finding
that the ALJ properly assessed the opinion of Plaintiff’s treating physician should be rejected, as
the ALJ did not provide reasons supported by the evidence for the weight accorded.” 103
“The opinion of the treating physician who is familiar with the claimant’s impairments,
treatments and responses, should be accorded great weight in determining disability.” 104 If the
treating physician’s opinion on the nature and severity of the impairment is consistent with other

98

Id.

99

Id. at 24.

100

Id.

101

See Perez, 415 F.3d at 461.

102

Rec. Doc. 23 at 6–12.

103

Rec. Doc. 24 at 1.

104

Newton, 209 F.3d at 455 (citing Leggett v. Chater, 67 F.3d 558, 566 (5th Cir. 1995); Greenspan v.
Shalala, 38 F.3d 232, 237 (5th Cir. 1994)).

17

substantial evidence and is supported by diagnostic techniques, the opinion should be given
controlling weight. 105 The ALJ has the sole responsibility for determining the claimant’s disability
status and can reject or give less weight to the opinions of a treating physician for good cause. 106
An ALJ may give a treating physician’s opinion less weight if the opinion is conclusory,
unsupported by medical or diagnostic tests, or otherwise unsupported by evidence. 107 However,
an ALJ is required to consider factors set forth in the Social Security regulations “before declining
to give any weight to the opinions of the claimant’s treating specialist.” 108 Those factors include:
“(1) the physician’s length of treatment of the claimant, (2) the physician’s frequency of
examination, (3) the nature and extent of the treatment relationship, (4) the support of the
physician’s opinion afforded by the medical evidence of record, (5) the consistency of the opinion
with the record as a whole; and (6) the specialization of the treating physician.” 109 If the ALJ fails
to conduct this analysis, reversal is only appropriate if the failure prejudiced the claimant. 110
Dr. Vega completed a Mental Impairment Questionnaire on April 2, 2015, after treating
Plaintiff on two occasions, diagnosing Plaintiff with bipolar mood disorder, panic disorder,
generalized anxiety disorder, and PTSD, and finding that Plaintiff had extreme loss of mental

105

Id.

106

Id. at 455–56.

107

Id. at 456.

108

Id.

109

Id. (citing 20 C.F.R. § 404.1527(c)(2)). See also 20 C.F.R. § 416.927(c) (applying the same factors to SSI
claims.) 20 C.F.R. § 416.927 applies to claims filed before March 27, 2017. Plaintiff’s application for SSI was filed
on February 25, 2013.).
110

Brock v. Chater, 84 F.3d 726, 729 (5th Cir. 1996).

18

functioning. 111 Dr. Vega opined that Plaintiff had “marked” limitations in her capabilities to
maintain attention and concentration for extended periods; perform activities within a schedule, be
punctual, and maintain regular attendance; work in coordination with or in proximity to others
without being distracted; interact appropriately with the public; accept instruction from
supervisors; and get along with co-workers. 112 In addition, Dr. Vega opined that Plaintiff had
“moderate” limitations in her ability to remember locations and work-like procedures; understand,
remember, and carry out simple instructions; and ability to make simple work-related decisions.113
On March 31, 2016, Vega filled out a similar form with nearly the same statements, adding that
plaintiff completely lacked the ability to interact appropriately with the general public or get along
with co-workers without distracting them or demonstrating extreme behaviors. 114
The ALJ afforded little weight to Dr. Vega’s opinion, noting that the first questionnaire
was completed after only two examinations. 115 The ALJ noted that Dr. Vega’s assessment of
Plaintiff’s limitations was more severe than the limitations Plaintiff herself indicated. 116 The ALJ
further noted that Dr. Vega’s statements contradicted her own objective clinical findings as well
as other evidence on the record. 117 The ALJ reasoned that if Plaintiff’s restrictions were as severe

111

Adm. Rec. at 940–46.

112

Id. at 942.

113

Id.

114

Id. at 1012–15.

115

Id. at 22–23.

116

Id. at 23.

117

Id. at 24.

19

as Dr. Vega described it would be “reasonable to assume that some other doctor would have noted
this.” 118 Instead, the ALJ found that the record was “replete with references to [Plaintiff] having a
normal mood and affect.” 119
The ALJ at least implicitly considered the factors set forth in the Social Security regulations
in declining to give the opinion of Dr. Vega controlling weight. Dr. Vega’s clinical findings did
not reflect the extreme loss of mental functioning that Dr. Vega described in the questionnaire.120
For example, on numerous visits between June 2015 and July 2016, Dr. Vega reported that Plaintiff
demonstrated fair judgment, fair insight, and unremarkable thought content. 121 Furthermore, in
April 2015, October 2015, and November 2015, other physicians noted that Plaintiff had a “normal
mood and affect,” displayed normal behavior, and had normal judgment and thought content.122
These observations contradict Dr. Vega’s statement that Plaintiff had a limited capacity to maintain
socially appropriate behavior.
As Plaintiff points out, Dr. Vega noted during numerous visits that Plaintiff displayed an
anxious and depressed mood. 123 Nevertheless, the record as a whole supports the ALJ’s finding
that Dr. Vega’s assessment of Plaintiff’s mental limitations were inconsistent with the evidence.
Therefore, the ALJ was within her discretion to resolve conflicts in the evidence and reject Dr.

118

Id.

119

Id.

120

Id. at 1269, 1287, 1346, 1351.

121

Id. at 1269, 1277, 1283, 1287, 1295, 1300, 1304, 1307, 1314, 1316, 1322, 1325, 1331, 1336, 1339, 1346,

122

Id. at 979, 1518, 1529

123

Id. at 1269, 1277, 1283, 1287, 1295, 1300, 1304, 1307, 1314, 1316, 1322, 1325, 1331, 1336, 1339, 1351.

1351.

20

Vega’s finding that Plaintiff had extreme loss of mental functioning, and substantial evidence
supported the RFC determination as it related to Plaintiff’s mental limitations. 124 Accordingly, the
Court adopts the Magistrate Judge’s Report and Recommendation to the extent it recommends that
the Court find substantial evidence supports the ALJ’s RFC determination as to Plaintiff’s mental
limitations.
C.

Did substantial evidence support the ALJ’s assessment of the Plaintiff’s physical
limitations?
The Magistrate Judge found that substantial evidence supported the ALJ’s assessment of

Plaintiff’s physical limitations. 125 Plaintiff objects, arguing that there is not substantial evidence
to support the RFC determination because the only physical examination evidence in the record
does not contain a functional evaluation. 126 Plaintiff argues that the ALJ cannot independently
determine Plaintiff’s RFC without some evidence of the effect of her conditions on her ability to
work. 127
“Under the regulations and [Fifth Circuit] case law, the determination of residual
functional capacity is the sole responsibility of the ALJ.” 128 An RFC determination “is not a

124

Plaintiff does not object to the Magistrate Judge’s finding that the ALJ gave due consideration to the report
of the consultative examiner, Dr. Fowler. The Magistrate Judge stated that the ALJ fully incorporated Dr. Fowler’s
examination into the RFC determination by finding that Plaintiff could not perform work that involved strict quotas,
direct contact with the public, more than low stress, or more than occasional interaction with supervisors and coworkers. Therefore, even assuming that the ALJ erred by failing to state the specific “weight” she afforded to Dr.
Fowler’s opinion, the Magistrate Judge found that Plaintiff had not shown that she was prejudiced by the absence of
such an articulation. Reviewing for plain error, and finding none, the Court adopts this determination.
125

Rec. Doc. 23 at 12–15.

126

Rec. Doc. 24 at 3.

127

Id. (citing Ripley, 67 F.3d at 557).

128

Taylor v. Astrue, 706 F.3d 600, 602–03 (5th Cir. 2012) (internal citations omitted).

21

medical opinion.” 129 Instead, “[a]n RFC determination is essentially a conclusion about what a
claimant may still do despite his [or her] impairments.” 130 “A consultative examination at
government expense may be required if the record establishes that such an examination is
necessary to enable the [ALJ] to make the disability decision.” 131 “The decision to require such an
examination is discretionary, but limited where the claimant raises the requisite suspicion that such
an examination is necessary for the ALJ to discharge his duty of full inquiry.” 132
In Ripley v. Chater, the Fifth Circuit recognized that as a general rule, an “ALJ should
request a medical source statement describing the types of work that the applicant is still capable
of performing.” 133 “The absence of such a statement, however, does not, in itself, make the record
incomplete.” 134 Where no medical statement describing the plaintiff’s ability to work has been
provided, the Fifth Circuit instructs that a reviewing court must focus “upon whether the decision
of the ALJ is supported by substantial evidence in the existing record.” 135 In Ripley, the Fifth
Circuit found that the ALJ’s determination that the plaintiff was capable of performing sedentary
work was not supported by substantial evidence because although the record established that the
plaintiff had a back condition that required surgery, it “did not clearly establish [] the effect [the

129

Joseph-Jack v. Barnhart, 80 F. App’x 317, 318 (5th Cir. 2003) (citing 20 C.F.R. §§ 416.946, 416.927(e)).

130

Holifield v. Astrue, 402 F. App’x 24 (5th Cir. 2010) (citing Perez v. Barnhart, 415 F.3d 457, 462 (5th Cir.

2005)).
131

Haywood v. Sullivan, 888 F.2d 1463, 1472 (5th Cir. 1989) (quoting Turner v. Califano, 563 F.2d 669, 671
(5th Cir. 1977) (per curiam)).
132

Id.

133

67 F.3d 552, 557 (5th Cir. 1995).

134

Id.

135

Id.

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plaintiff’s] condition had on his ability to work.” 136 Therefore, on remand, the Fifth Circuit
instructed the ALJ to obtain a report from a treating physician regarding the effects of the plaintiff’s
back condition on his ability to work. 137
In Taylor v. Astrue, the Fifth Circuit rejected the plaintiff’s argument that substantial
evidence did not support the ALJ’s RFC determination. 138 The Fifth Circuit found that the medical
records failed to corroborate the plaintiff’s complaints of pain, noting that MRIs were normal, an
EEG test was normal, and neurophysiological studies were “unremarkable.” 139 Furthermore, one
of the plaintiff’s doctors remarked that “[i]t appears that the patient does not have any anatomical
reason [for] his pain.” 140 Therefore, the Fifth Circuit concluded that substantial evidence supported
the ALJ’s determination and that the ALJ properly “used the medical information provided by [the
plaintiff] to determine the plaintiff’s residual functional capacity for work.” 141
Plaintiff asserts that this case is distinguishable from Taylor because an MRI of Plaintiff’s
back conducted in February 2016 revealed abnormalities in the cervical, thoracic, and lumbar
spine. 142 Plaintiff argues that these findings were enough to warrant some medical opinion on the
effect of these conditions on her ability to work. 143

136

Id.

137

Id. at 557–58.

138

706 F.3d at 603.

139

Id.

140

Id.

141

Id. at 602.

142

Rec. Doc. 24 at 3–4 (citing Adm. Rec. at 1171).

143

Id. (citing Ripley, 67 F.3d at 557).

23

The February 2016 MRI showed bulging and moderate foraminal narrowing with
secondary moderate foraminal narrowing and superimposed mild right paracentral protrusion with
mild focal impression on the right ventral sac at level L4–L5 of Plaintiff’s back. 144 Mild
desiccation of the L1–L2 level was also noted. 145 Mild posterior spondylosis was found at C3–C4
and C4–C5, with moderate right foraminal narrowing at C4-C5. 146 Further, mild dessication was
found at levels T6–T7 and T7–T8, with incidental vertebral hemangioma at T7. 147
The ALJ characterized the findings from the 2016 MRI as “mild.” 148 The ALJ also noted
that x-rays of Plaintiff’s spine performed in June 2016 and July 2016 showed “mild findings.” 149
The ALJ also evaluated an MRI performed on December 30, 2014, which showed mild posterior
spondylosis at C3-C4 and mild posterior spondylosis with right uncinate hypertrophy and
moderate right foraminal stenosis at C4-C5. 150
Both the ALJ’s opinion and the Magistrate Judge’s Report and Recommendation focus on
record evidence showing some displays of normal musculoskeletal and neurological functioning
during the relevant time period. 151 Despite some normal clinical findings, the medical records also
show that Plaintiff frequently complained of neck pain and bilateral numbness in both arms

144

Adm. Rec. at 1171.

145

Id.

146

Id.

147

Id.

148

Id. at 17.

149

Id.

150

Id. at 21.

151

Id.; Rec. Doc. 23 at 13 (citing Adm. Rec. at 979, 1118, 1167, 1169, 1170).

24

beginning on late 2014, and low back pain radiating into both legs beginning early 2015. 152 A
nerve conduction study and EMG of Plaintiff’s bilateral lower extremities conducted on March
17, 2015, was consistent with acute chronic bilateral lumbosacral radiculopathy. 153 Plaintiff was
also diagnosed with right sacroiliac joint dysfunction on February 19, 2016. 154 Furthermore, the
MRIs show that Plaintiff’s back condition had deteriorated, at least to some degree between the
December 2014 and the February 2016 MRIs.
In Ripley, the Fifth Circuit found that the ALJ erred in failing to order a report regarding
the effects of the plaintiff’s back condition on the plaintiff’s ability to work. 155 Similarly, here,
there is no medical evidence in the record showing the effects of Plaintiff’s back conditions and
carpal tunnel syndrome on her ability to work. “The absence of such a statement, however, does
not, in itself, make the record incomplete.” 156 Instead, the Court must focus “upon whether the
decision of the ALJ is supported by substantial evidence in the existing record.” 157
This case is distinguishable from Taylor v. Astrue, where the Fifth Circuit upheld a RFC
determination without requiring a functional capacity evaluation because there the medical records
completely failed to corroborate the plaintiff’s complaints of pain, as the plaintiff’s MRIs were

152

Adm. Rec. at 630, 683, 973, 1028, 1059, 1073, 1082, 1085, 1101, 1166, 1169, 1389, 1390, 1439, 1459,

1489, 1552.
153

Id. at 967.

154

Id. at 1169–72.

155

67 F.3d at 557.

156

Id.

157

Id.

25

normal, an EEG test was normal, and neurophysiological studies were “unremarkable.” 158 Here,
an MRI of Plaintiff’s back conducted in February 2016 revealed abnormalities in the cervical,
thoracic, and lumbar spine. 159 A nerve conduction study and EMG of Plaintiff’s bilateral lower
extremities conducted on March 17, 2015, was consistent with acute chronic bilateral lumbosacral
radiculopathy. 160 Although there is some evidence of normal musculoskeletal and neurological
functioning during the relevant time period, there is also objective medical evidence supporting
the diagnoses of moderate carpal tunnel syndrome of the right wrist, cervical spondylosis, and
lumbar degenerative disc disease. Furthermore, there is no medical evidence showing the effect of
these conditions on Plaintiff’s ability to work. Therefore, the Court concludes that the decision of
the ALJ is not supported by substantial evidence in the existing record. Accordingly, a remand in
this case is appropriate. Upon remand, the ALJ should request clarification from Plaintiff’s treating
physician and may request a supplemental opinion from the consultative examiner, or both. 161 The
evidence should include a functional capacity evaluation or other statement of the effects of
Plaintiff’s condition on her ability to work. 162
V. Conclusion
For the foregoing reasons, the Court finds that the ALJ was within her discretion to resolve
conflicts in the evidence and reject Dr. Vega’s finding that Plaintiff had extreme loss of mental

158

706 F.3d at 603.

159

Adm. Rec. at 1171.

160

Id. at 967.

161

See Williams v. Astrue, 355 F. App’x 828, 832 (5th Cir. 2009).

162

Id.

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functioning, and substantial evidence supported the RFC determination as it related to Plaintiff’s
mental limitations. Accordingly, the Court adopts the Magistrate Judge’s Report and
Recommendation to the extent it recommends that the Court find substantial evidence supports the
ALJ’s RFC determination as to Plaintiff’s mental limitations. However, the Court finds that the
ALJ’s RFC determination as to Plaintiff’s physical limitations was not based on substantial
evidence. Accordingly,
IT IS HEREBY ORDERED that the Court OVERRULES IN PART Plaintiff’s
objections related to the assessment of Plaintiff’s mental limitations and SUSTAINS IN PART
Plaintiff’s objections related to the assessment of Plaintiff’s physical limitations;
IT IS FURTHER ORDERED that the Court ADOPTS IN PART the Magistrate Judge’s
recommendation as to Plaintiff’s mental limitations and REJECTS IN PART the Magistrate
Judge’s recommendation as to Plaintiff’s physical limitations;
IT IS FURTHER ORDERED that the case is REMANDED to the ALJ for additional
proceedings consistent with this opinion.
NEW ORLEANS, LOUISIANA, this 13th day of February, 2019.
____
__________________________________
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

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