Silva v. Commissioner, SSA

Filing 22

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE, for 15 Report and Recommendation. ORDERED that the decision of the Administrative Law Judge is AFFIRMED. Signed by Judge Amos L. Mazzant, III on 8/25/2016. (kls, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

MARINA SILVA
V.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION

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CASE NO. 4:15-CV-5
(Judge Mazzant/Judge Bush)

MEMORANDUM ADOPTING REPORT AND
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Came on for consideration the report of the United States Magistrate Judge in this action, this
matter having been heretofore referred to the United States Magistrate Judge pursuant to 28 U.S.C.
§ 636.
On June 30, 2016, the report of the Magistrate Judge was entered containing proposed
findings of fact and recommendations that the decision of the Administrative Law Judge be
AFFIRMED.
On July 11, 2016, Plaintiff filed objections to the Magistrate Judge’s report (see Dkt. #17),
and Defendant filed its response to those objections on July 28, 2016 (see Dkt. #21).
The Court has made a de novo review of the objections raised by Plaintiff and Defendant’s
response and is of the opinion that the findings and conclusions of the Magistrate Judge are correct
and the objections are without merit as to the ultimate findings of the Magistrate Judge.

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In her objections, Plaintiff argues that the statements of her treating physician, Dr. Timon,
were more detailed than what was represented by the Magistrate Judge in his report. Plaintiff argues
that Dr. Timon’s statements show a capacity for work that is less than sedentary. According to
Plaintiff, although the Magistrate Judge indicated that Plaintiff could sit and stand/walk at least 6
hours in an 8 hour workday, Dr. Timon’s statements indicate that she could not do so without some
accommodation.
As the Magistrate Judge correctly noted, the ALJ has the responsibility for determining an
individual’s RFC. See Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995). The administrate record
here contains sufficient evidence of the ALJ’s consideration of Plaintiff’s medical records, including
Dr. Timon’s records and opinions. As noted by Defendant and the Magistrate Judge, Dr. Timon’s
records note Plaintiff’s generally improved condition and are not inconsistent with the ALJ’s
analysis. See, e.g., Tr. 58, 418-422. Although Dr. Timon also opined that Plaintiff may be
somewhat limited in her ability to sit, stand and walk for at least six hours in a day, the ALJ was not
required to accept Dr. Timon’s opinion in full, and indeed stated that he gave reduced weight to Dr.
Timon’s opinion because it overall notes a “lack of serious limitations placed on the claimant per
her (apparently former) treating physician (who has not seen her since July 5, 2012).” Tr. 20.
The objective evidence of record, including Dr. Timon’s notes, supports the ALJ’s
conclusions. Because the ALJ retains the sole responsibility for determining an individual’s RFC
based on all of the relevant evidence, including the medical records, treating physician observations,
and the claimant’s descriptions of his limitations, the Court finds that Plaintiff’s objection regarding

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the ALJ’s and Magistrate Judge’s consideration of Dr. Timon’s opinions are without merit. See
Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995); 20 C.F.R. §§ 404.1546(c), 416.946(c); SSR 968p, 1996 WL 374184, at *5.
Next, the Court turns to Plaintiff’s objection to the Magistrate Judge’s conclusion that the
ALJ’s hypothetical to the VE was proper. Plaintiff argues that Plaintiff’s counsel’s question to the
VE complied directly with the medical evidence and was therefore entitled to greater consideration.
The ALJ is not bound by vocational expert testimony based upon hypothetical assumptions rejected
by the ALJ. Owens v. Heckler, 770 F.2d 1276, 1282 (5th Cir. 1985). Plaintiff’s objection regarding
the hypothetical posed to the VE is without merit.
Finally, to the extent Plaintiff argues that the ALJ’s and Magistrate Judge’s conclusions
“penalize” her for working part-time despite her reported condition, the Court finds no error. As
correctly noted by Defendant in response to her objections, when determining Plaintiff’s disability
status, the ALJ is permitted to consider evidence that Plaintiff was able to hold a part-time job while
at the same time alleging an inability to work due to back problems. See, e.g., Murray v. Astrue, 419
F. App’x 539, 541 (5th Cir. 2011) (citing Vaughan v. Shalala, 58 F.3d 129, 131 (5th Cir. 1995)).
Any objection in this regard is overruled.
Finding that Plaintiff’s objections are without merit and that substantial evidence supports
the ALJ’s decision, the Court hereby adopts the findings and conclusions of the Magistrate Judge
as the findings and conclusions of this Court.

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.
It is, therefore, ORDERED that the decision of the Administrative Law Judge is
AFFIRMED.
It is SO ORDERED.
SIGNED this 25th day of August, 2016.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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