Wright v Berryhill

Filing 26

Memorandum Opinion and Order (Ordered by Magistrate Judge Rebecca Rutherford on 3/28/2019) (ykp) Modified to correct judge on 3/29/2019 (ctf).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
STEVEN T. W.,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.

§
§
§
§
§
§
§
§
§
§
§

Case No. 3:18-cv-00030-BT

MEMORANDUM OPINION AND ORDER
Plaintiff Steven T. W. 1 filed a civil action seeking judicial review pursuant to
42 U.S.C. § 405(g) of a final adverse decision by the Commissioner of Social
Security. For the reasons explained below, the Commissioner’s decision is
AFFIRMED.
Background
Plaintiff alleges that he is disabled due to a variety of impairments, including
opioid use disorder, depression, and bipolar disorder. 2 Administrative Record 15455 (“A.R.”) (ECF No. 13-1). After his applications for disability insurance benefits

The Court uses only Plaintiff’s first name and last initial as instructed by the
May 1, 2018 Memorandum Re: Privacy Concern Regarding Social Security and
Immigration Opinions issued by the Committee on Court Administration and Case
Management of the Judicial Conference of the United States.

1

Plaintiff’s alleged impairments also include various physical impairments,
but his physical impairments are not at issue in this appeal. Pl.’s Br. 3 (ECF No.
19).

2

1

and supplemental security income were denied initially and on reconsideration,
Plaintiff requested a hearing before an administrative law judge (“ALJ”). That
hearing took place in Dallas, Texas, on August 9, 2016. A.R. 152. At the time of the
hearing, Plaintiff was 45 years old. See id. 165. He has a high school education, can
communicate in English, and has past work experience as a valet, cashier,
installation technician, and ticket agent. Id.
The ALJ found that Plaintiff was not disabled and, therefore, not entitled to
disability insurance benefits or supplemental security income. Id. 166-67. At step
one of the five-step sequential evaluation, 3 the ALJ found Plaintiff had not engaged
in substantial gainful activity since June 11, 2014. Id. 154. At steps two and three,
the ALJ found that Plaintiff had the severe impairments of gout, degenerative disc
disease of the lumbar spine, hypertension, affective disorders—bipolar disorder,
major depressive disorder, a mood disorder, and an adjustment disorder—as well

“In evaluating a disability claim, the Commissioner conducts a five-step
sequential analysis to determine whether (1) the claimant is presently working; (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
impairment prevents the claimant from doing any other substantial gainful
activity.” Audler v. Astrue, 501 F.3d 446, 447-48 (5th Cir. 2007). The claimant
bears the initial burden of establishing a disability through the first four steps of
the analysis; at the fifth step, the burden shifts to the Commissioner to show that
there is other substantial work in the national economy that the claimant can
perform. Id. at 448; Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014)
(citations omitted). A finding that the claimant is disabled or not disabled at any
point in the five-step review is conclusive and terminates the analysis. Copeland,
771 F.3d at 923 (citing Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995));
Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987) (citing Barajas v. Heckler, 738
F.2d 641, 643 (5th Cir. 1984) (per curiam)).
3

2

as a substance abuse disorder, opioid addiction; nonetheless, the ALJ found that
his impairments, or combination of impairments, did not meet or equal the
severity of any listed impairment in the social security regulations. Id. 154-55. At
step four, the ALJ found Plaintiff had the residual functional capacity (“RFC”) to
perform a limited range of sedentary work and determined that he could not
perform his past work. Id. 160-65. At step five, relying on the testimony of a
vocational expert, the ALJ found that Plaintiff can work as an order clerk, an
optical goods assembler, and a lens inserter—jobs that exist in significant numbers
in the national economy. Id. 166.
Plaintiff appealed the ALJ’s decision to the Appeals Council. The Council
affirmed. Id. 6. Plaintiff then filed this action in federal district court and argues
the ALJ erred in finding him not disabled because he failed to analyze the treating
sources’ opinions under 20 C.F.R. § 404.1527(c)’s factors when “rejecting” them;
as a result, Plaintiff contends that the RFC with respect to his mental limitations is
not supported by substantial evidence.
Legal Standards
Judicial “review of Social Security disability cases ‘is limited to two
inquiries: (1) whether the decision is supported by substantial evidence on the
record as a whole, and (2) whether the Commissioner applied the proper legal
standard.’” Copeland, 771 F.3d at 923 (quoting Perez v. Barnhart, 415 F.3d 457, 461
(5th Cir. 2005)); see also Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995) (citation
omitted). Substantial evidence is “more than a mere scintilla. It means such
3

relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation
marks and citation omitted); see also Copeland, 771 F.3d at 923 (“Substantial
evidence is ‘more than a mere scintilla and less than a preponderance.’”) (quoting
Perez, 415 F.3d at 461). The Commissioner, and not the courts, resolves conflicts
in the evidence; thereafter, the Court may not “reweigh the evidence or try the
issues de novo.” Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995) (per curiam)
(citing Cook v. Heckler, 750 F.2d 391, 392-93 (5th Cir. 1985); Patton v.
Schweiker, 697 F.2d 590, 592 (5th Cir. 1983) (per curiam)). Accordingly, the
Court may not substitute its own judgment for the Commissioner’s, and it may
affirm only on the grounds that the Commissioner stated to support her decision.
Copeland, 771 F.3d at 923 (citing Cole v. Barnhart, 288 F.3d 149, 151 (5th Cir.
2002) (per curiam)).
Analysis
In July 2016, Ali Nazempoor, Ph.D., Plaintiff’s treating psychologist, opined
that Plaintiff’s mental impairments could be expected to interfere with his ability
to work from 10% up to 20% of the time, and that Plaintiff is significantly limited
in the ability to maintain attention for extended periods; sustain an ordinary
routine without special supervision; interact appropriately with the general public;
ask simple questions or request assistance; accept instructions and respond
appropriately to criticism from supervisors; get along with co-workers; respond
appropriately to changes in a routine work setting; and deal with normal work
4

stress. A.R. 1393-94. Dr. Nazempoor further opined Plaintiff is extremely limited
with respect to his ability complete a normal work week without interruptions from
psychologically based symptoms and perform at a consistent pace without an
unreasonable number and length of rest periods. Id. 1393. Dr. Nazempoor opined
Plaintiff met listings 12.04 and 12.06. Id. 1037-47.
In August 2016, Dhiren Patel, M.D., Plaintiff’s treating psychiatrist,
similarly opined that Plaintiff’s impairments could be expected to interfere with
his ability to work from 10% up to 20% of the time, and that he is significantly
limited in the ability to carry out short and simple instructions; maintain attention
for extended periods; sustain an ordinary routine without special supervision;
work in coordination with others without being unduly distracted; complete a
normal workday and workweek without interruptions from psychologically based
symptoms; interact appropriately with the general public; ask simple questions or
request assistance; accept instructions and respond appropriately to criticism from
supervisors; get along with co-workers; respond appropriately to changes in a
routine work setting; and deal with normal work stress. Id. 1378-79. Dr. Patel
further opined Plaintiff is extremely limited with respect to his ability to perform
activities within a schedule; maintain regular attendance; and be punctual within
customary tolerances. Id. 1378. Dr. Patel opined that Plaintiff met listing 12.04. Id.
1380-91.
The ALJ specifically addressed Dr. Patel’s and Dr Nazempoor’s opinions in
his written decision, but he declined to give either opinion controlling weight.
5

Instead, the ALJ found that, although Plaintiff had the mental RFC to understand,
remember, and carry out only simple tasks and instructions, his mental
impairments are not disabling, alone or in combination with his other physical
impairments. Id. 152. The ALJ did not find that any of Plaintiff’s impairments met
or equaled a listing. Id. 148.
In his written decision, the ALJ explained:
I have . . . considered the opinion of Dhiren Patel, D.O.,
the claimant’s treating source at Solace Counseling
Associates, that the claimant had a global assessment of
functioning (GAF) score of 35, had marked limitations in
the paragraph B criteria and had experienced three
extended episodes of decompensation (Ex. B19F/5, 6,
15).
I give little weight to this assessment, even though Dr.
Patel is a treating source, because he did not cite evidence
in support of his assessment (Ex. B19F/5- 15). Also, his
own treatment notes do not support marked limitations
because, as will be discussed below, the claimant typically
denied mood problems, complained only of anxiety, and
exhibited only deficits in affect. Finally, other treatment
notes of record are inconsistent with Dr. Patel’s
assessment because, as will be discussed below, the
claimant exhibited a normal mood and affect during
mini­psychological examinations when he presented for
treatment of his physical impairments.
Because Dr. Patel’s treating source opinion is
inadequately supported and inconsistent with
substantial evidence of record, including his own
treatment notes, this opinion will receive little weight (20
CFR 404.1527 and 416.927).
Similarly, another of the claimant’s treating sources, Ali
Nazempoor, Ph.D., opined in July 2016 that the claimant
had multiple impairments, a GAF score of 50, four or
more extended episodes of decompensation, and extreme
6

limitation in the other paragraph B criteria (Ex. Bl 4F/212; B15F/1- 11). I give little weight to this opinion for
many reasons. First, the claimant testified that he had
only started seeing Dr. Nazempoor in March 2016, which
means that Dr. Nazempoor has not established a
longitudinal treating relationship with the claimant (20
CFR 404.1527(c)(2) and 416.927(c)(2)). He attributed
the claimant’s limitations, in part, to an intellectual
disability (Ex. B14F/7), but the claimant has not even
alleged such an impairment. In addition, again, the
claimant has not experienced even one extended episode
of decompensation, much less four.
Finally, while Dr. Nazempoor cited anxiety, mood
swings, sadness, and low energy with difficulty focusing,
concentrating, finishing tasks, resting, and sleeping (Ex.
Bl 4F/3; B15F/2), these are merely symptoms rather than
objective findings because, again, the claimant only
exhibited deficits in affect. Because this treating source
opinion is inadequately supported and inconsistent with
substantial evidence of record, including the claimant’s
own allegations, it will receive little weight (20 CFR
404.1527(c)(3), (4) and 416.927(c)(3), (4)).
Id. 157-58.
The ALJ also thoroughly discussed the paragraph B criteria:
ln activities of daily living, the claimant has mild
restriction. The claimant reported during the application
process, testified, and/or told doctors that he had no
energy or motivation and had insomnia (Ex. B4E/2;
B7E/2, 5; B4F/199, 205, 211; B5F/2). However, the
claimant attributed his insomnia in large part to his pain
(Ex. B4E/1; B7E/1). While he reported in connection with
the application process that his lack of motivation caused
him to go long periods without changing his clothes or
showering and to have difficulty even getting up to use
the restroom, he told his consultative examiner that he
did not have problems maintaining personal hygiene and
exhibited adequate hygiene at that time (Ex. 5E/5;
B7E/2; B5F/2, 3). Accordingly, the claimant’s restriction
7

in daily activities, if any, due to mental impairments is
only mild.
In social functioning, the claimant has mild difficulties.
The claimant reported during the application process,
testified, and/or told doctors that he had mood swings,
felt worthless, and was easily agitated with difficulty
controlling his emotions (Ex. B4E/7; B7E/7; B5F/2).
However, he testified that he would isolate instead of lash
out at others when he had these symptoms. Also, while
the claimant reported that he had no motivation to be
social and did not attend church, he also reported that he
had no difficulty getting along with others, could get
along okay with authority figures, had a good
relationship with his mother, confided in two friends and
his sister, and sometimes watched movies with his friend
(Ex. B4E/5-7; B7E/5-7; B5F/2).
Therefore, while the claimant has symptoms in this area
that are supported by deficits in affect discussed below
and that result in his preferring to be alone, he is still
capable of interacting appropriately with others when
necessary. Accordingly, he has only mild difficulty in his
ability to maintain social functioning.
With regard to concentration, persistence, or pace, the
claimant has moderate difficulties. The claimant
generally reported during the application process,
testified, and/or told doctors that he had difficulty
thinking clearly, expressing himself; remembering,
completing tasks, understanding, following instructions,
and handling stress or change (Ex. B4E/6, 7; B7E/6, 7;
B5F/2). The claimant’s field office interviewer observed
that the claimant had difficulty concentrating in that he
rambled in response to questions and would go off course
onto other subjects (Ex. Bl E/2), and this is consistent
with my observations of the claimant during the hearing.
However, the claimant was also quite articulate during
the hearing, was good at explaining himself, and
remembered dates well. While he reported during the
application process and/or testified that he could not
concentrate on reading, he reported that he could make
8

it through a movie (Ex. B4E/6; B7E/5, 6). In addition, the
claimant told his consultative examiner that he needed
reminders to take medication and had difficulty
managing finances (Ex. B5F/3). However, he reported
during the application process that he did not need
reminders to engage in personal care or take medication
and could handle money as before (Ex. B4E/3-5; B7E/35). Finally, the claimant exhibited deficits in affect during
mental status examinations and was irritable, overly
talkative, or restless during hospitalizations, but his
examinations were otherwise normal, including showing
no deficits in thought process and content, memory, and
concentration (Ex. B3F/3; B4F/207, 209; B5F/3, 4;
B6F/7, 8, 11, 16, 24, 26; B8F/2, 6, 12, 20, 29, 31, 33, 35,
37). The claimant’s apparent difficulty staying focused,
primarily during conversations, and his deficits in affect
show more than mild difficulty in his ability to maintain
concentration, persistence, or pace. However, for the
reasons discussed above, this difficulty is moderate
rather than marked.
As for episodes of decompensation, the claimant has
experienced no episodes of decompensation that have
been of extended duration. Again, the claimant was only
hospitalized for two days in July 2014 (Ex. B4F/204),
and in June 2015, he was only treated for four days (Ex.
B6F/4; B8F/39).
Because the claimant’s mental impairments do not cause
at least two “marked” limitations or one “marked”
limitation and “repeated” episodes of decompensation,
each of extended duration, the “paragraph B” criteria are
not satisfied.
Id. 157-60.
Plaintiff argues that remand is appropriate because the ALJ failed to
consider the factors under 20 C.F.R. § 404.1527(c) when “rejecting” Dr. Patel’s and
Dr Nazempoor’s opinions in the absence of a controverting treating or examining
physician’s opinion. Pl.’s Br. 8-9, 19. Because of this alleged error, Plaintiff
9

contends that the ALJ’s RFC regarding Plaintiff’s mental limitations is not
supported by substantial evidence. The Court will first address whether the ALJ
adequately considered § 404.1527(c)’s factors in giving the treating sources’
opinions “little weight,” before determining whether Plaintiff’s mental RFC is
supported by substantial evidence.
A.
With respect to claims filed before March 27, 2017, the ALJ must evaluate
medical opinion evidence in the manner prescribed by 20 C.F.R. § 404.1527. Under
§ 404.1527(a)(1), “[m]edical opinions are statements from acceptable medical
sources that reflect judgments about the nature and severity of your
impairment(s), including your symptoms, diagnosis and prognosis, what you can
still do despite impairment(s), and your physical or mental restrictions.”
Acceptable medical sources include licensed physicians—both medical and
osteopathic doctors—and licensed psychologists. 20 C.F.R. § 404.1502(a)(1)-(2). A
treating source “means your own acceptable medical source who provides you, or
has provided you, with medical treatment or evaluation and who has, or has had,
an ongoing treatment relationship with you.” 20 C.F.R. § 404.1527(a)(2). “A
treating source’s medical opinion is entitled to controlling weight if it is (1) ‘wellsupported by medically acceptable clinical and laboratory diagnostic techniques’
and (2) ‘not inconsistent with’ other substantial evidence.” Bentley v. Colvin, 2015
WL 5836029, at *7 (N.D. Tex. Sept. 30, 2015) (quoting 20 C.F.R.
§§ 404.1572(c)(2), 416.927(c)(2); citing Newton v. Apfel, 209 F.3d 448, 455 (5th
10

Cir. 2000)). However, contrary to Plaintiff’s argument that “special deference . . .
must be accorded treating source opinions when they are not accorded controlling
weight,” ALJs are free to assign little or no weight to treating physicians’ opinions
for good cause. Newton, 209 F.3d at 455-56 (citing Greenspan v. Shalala, 38 F.3d
232, 237 (5th Cir. 1994)); Pl.’s Br. 26; Pl.’s Reply 2 (ECF No. 25). Good cause exists
when “relative to other experts . . . the treating physician’s evidence is conclusory,
is unsupported by medically acceptable clinical, laboratory, or diagnostic
techniques, or is otherwise unsupported by the evidence.” Newton, 209 F.3d at 456
(citing Brown v. Apfel, 192 F.3d 492, 500 (5th Cir. 1999); Greenspan, 38 F.3d at
237; Paul v. Shalala, 29 F.3d 208, 211 (5th Cir. 1994), overruled on other grounds
by Sims v. Apfel, 530 U.S. 103, 107 (2000)).
Unless controlling weight is given to a treating source’s opinion per
§ 404.1527(c)(2), an ALJ is to consider the following factors in determining the
weight to give to “any medical opinion”: (1) the physician’s examining relationship;
(2) the nature and extent of the treatment relationship: length of treatment and
frequency of examination; (3) the support a medical source presents for its
opinion, in terms of objective evidence and explanation; (4) the consistency of the
opinion with the record as a whole; (5) the specialization of the physician; and (6)
other factors, including a medical source’s amount of understanding of “our
disability programs and their evidentiary requirements.” 20 C.F.R. § 404.1527(c).
Medical sources other than treating sources do not carry the same “considerable
weight,” but they still must be considered. See Robinson v. Astrue, 271 F. App’x
11

394, 396 (5th Cir. 2008) (per curiam) (“Wong performed a one-time consultative
examination of Robinson and therefore is not due special deference as a treating
physician.”); Kneeland v. Berryhill, 850 F.3d 749, 760 (5th Cir. 2017).
The Court finds the ALJ’s decision reflects that he adequately analyzed the
factors under 20 C.F.R. § 404.1527(c) before assigning “little weight” to Dr. Patel’s
and Dr. Nazempoor’s opinions. A.R. 157-58, 164. Plaintiff is correct that “‘absent
reliable medical evidence from a treating or examining physician controverting the
claimant’s treating specialist, an ALJ may reject the opinion of the treating
physician only if the ALJ performs a detailed analysis of the treating physician’s
views under the criteria set forth in 20 C.F.R. § 404.1527(d)(2).’” Kneeland, 850
F.3d at 760 (emphasis in original) (quoting Newton, 209 F.3d at 453) (noting that
the regulation currently appears at 20 C.F.R. § 404.1527(c)(2)); Pl.’s Br. 20.
Kneeland further counsels that “the regulations make clear that opinions from
examining physicians must be considered” and that “fundamentally, the ALJ
cannot reject a medical opinion without explanation.” Kneeland, 850 F.3d at 760
(citing Loza v. Apfel, 219 F.3d 378, 395 (5th Cir. 2000); Goodley v. Harris, 608
F.2d 234, 236 (5th Cir. 1979)) (internal quotation marks and brackets omitted).
Here, however, the ALJ explains his decision to give both opinions “little
weight,” and his explanation demonstrates that he considered § 404.1527(c)’s
factors. The ALJ gave “little weight” to Dr. Patel’s opinion, “even though [he] is a
treating source,” because “he did not cite evidence in support of his assessment”;
“his own treatment notes do not support marked limitations”; and “other
12

treatment notes of record are inconsistent with Dr. Patel’s assessment.” A.R. 157.
These reasons indicate that the ALJ considered the Dr. Patel’s examining
relationship with Plaintiff; the support he presented for his opinion, in terms of
objective evidence and explanation; and the consistency of the opinion with the
record as a whole. See 20 C.F.R. § 404.1527(c)(1), (3)-(4). The ALJ also mentioned
that Dr. Patel is “the claimant’s treating source at Solace Counseling Associations”
and cited to the treatment records from Solace Counseling, which evidences that
he considered the nature and extent of the treatment relationship and Dr. Patel’s
specialization. A.R. 157; 20 C.F.R. § 404.1527(c)(2), (5). It is clear, therefore, that
the ALJ considered the regulatory factors when determining the weight to assign
Dr. Patel’s opinion.
Similarly, the ALJ also afforded “little weight” to Dr. Nazempoor’s opinion,
“another of the claimant’s treating sources,” because “Dr. Nazempoor had not
established a longitudinal relationship with the claimant”; “[h]e attributed the
claimant’s limitations, in part, to an intellectual disability, but the claimant has not
even alleged such an impairment”; and “the claimant has not experienced even one
extended episode of decompensation, much less four.” A.R. 158. In weighing Dr.
Nazempoor’s July 2016 opinion and determining that he had not established a
longitudinal relationship with Plaintiff, the ALJ noted “the claimant testified that
he had only started seeing Dr. Nazempoor in March 2016,” indicating that the ALJ
considered the Dr. Nazempoor’s examining relationship as well as the nature and
extent of the treatment relationship with. Id.; see 20 C.F.R. § 404.1527(c)(1)-(2).
13

The ALJ’s acknowledgement that Dr. Nazempoor partly attributed Plaintiff’s
mental limitations to an intellectual disability, which the claimant had not alleged
as an impairment, and cited several of Plaintiff’s symptoms such as “sadness,
anxiety, and mood swings” without making objective findings, evidences that the
ALJ considered the support Dr. Nazempoor presented for his opinion, in terms of
objective evidence and explanation. See 20 C.F.R. § 404.1527(c)(3). Further, the
ALJ noted that Dr. Nazempoor’s opinion was inconsistent with the substantial
evidence of record. A.R. 158; see 20 C.F.R. § 404.1527(c)(4). And the ALJ
designated Dr. Nazempoor as a Ph.D., rather than an M.D., indicating the ALJ’s
awareness of Dr. Nazempoor’s specialty as a psychologist rather than a
psychiatrist. A.R. 158; see 20 C.F.R. § 404.1527(c)(5). Thus, while the ALJ perhaps
could have expanded upon his analysis of § 404.1527(c)’s factors, procedural
perfection is not required. See Taylor v. Astrue, 706 F.3d 600, 603 (5th Cir. 2012)
(per curiam) (citing Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988) (per
curiam)). Accordingly, the Court concludes that the ALJ adequately considered the
regulation’s factors when assigning both treating sources’ opinions “little weight.”
B.
Because Plaintiff asserts that the ALJ inadequately applied § 404.1527(c)’s
factors and gave “little weight” to the treating sources’ opinions, he maintains that
the ALJ’s mental RFC finding is not supported by substantial evidence. Pl.’s Reply
2. The Court concludes Plaintiff’s mental RFC is supported by substantial evidence.

14

“It is the responsibility of the ALJ to interpret ‘the medical evidence to
determine [a claimant’s] capacity for work.’” Fontenot v. Colvin, 661 F. App’x 274,
277 (5th Cir. 2016) (per curiam) (quoting Taylor, 706 F.3d at 603). “‘[T]he ALJ is
entitled to determine the credibility of medical experts as well as lay witnesses and
to weigh their opinions and testimony accordingly.’” Id. (brackets in original)
(quoting Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir. 1990) (per curiam)). “If
supported by substantial evidence, the Commissioner’s findings are deemed
conclusive, and the court must accept them.” Jones v. Astrue, 851 F. Supp. 2d.
1010, 1015 (N.D. Tex. 2012) (citing Richardson, 402 U.S. at 390). Substantial
evidence in this context, “means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 401
(citation omitted).
Here, substantial evidence supports Plaintiff’s mental RFC. In making his
RFC determination, the ALJ gave state agency psychological consultants James
Murphy, Ph.D., and Matthew Wong, Ph.D.’s opinions “partial weight”; they found
that “the claimant could understand, remember, and carry out detailed but not
complex instructions; make basic decisions; attend and concentrate for extended
periods; interact with others; accept instructions; and respond to changes in a
routine work setting.” A.R. 157, 164, 241, 255, 273, 289. Plaintiff is correct that the
non-examining state agency consultants’ opinions taken alone would not be
substantial evidence. See Johnson v. Harris, 612 F.2d 993, 998 (5th Cir. 1980) (per
curiam) (“If it is true that the physicians who reported on [the claimant’s]
15

condition did not even see him, this alone would not be substantial evidence on
which to base an administrative decision.”); Kneeland, 850 F.3d at 761 (quoting
Strickland v. Harris, 615 F.2d 1103, 1109 (5th Cir. 1980)) (“Yet, ‘the reports of
physicians who did not examine the claimant, taken alone, “would not be
substantial evidence on which to base an administrative decision.”‘“); but see Villa
v. Sullivan, 895 F.2d 1019, 1024 (5th Cir. 1990) (citing Ransom v. Heckler, 715
F.2d 989, 993-94 (5th Cir. 1983) (per curiam)) (“We believe an ALJ may properly
rely on a non-examining physician’s assessment when, as in this case, those
findings are based upon a careful evaluation of the medical evidence and do not
contradict those of the examining physician.”). Here, however, the ALJ did not
base his decision and RFC determination on Dr. Murphy and Dr. Wong’s opinions
alone. The ALJ’s RFC assessment is based on “the State agency medical
consultants’ opinions to some extent, the objective medical record, and the record
as a whole,” though the Court also finds that his RFC reflects the “little weight” he
accorded the treating sources’ opinions. A.R. 157-58, 164-65. The ALJ did not
completely reject the treating sources’ opinions; instead, he assigned them “little
weight” and explained his reasons for doing so, as mentioned above. Id. 157-58,
164. The resulting RFC reflects this “little weight” because, though the treating
sources’ and the state agency consultants’ opinions express varying degrees of
severity, they all agree that Plaintiff has “understanding and memory limitations,”
“concentration and persistence limitations,” “social interaction limitations,” as
well as “adaptation limitations,” which the ALJ accounted for in finding that
16

Plaintiff had the RFC to “understand, remember, and carry out only simple tasks
and instructions.” A.R. 160, 239-40, 253-54, 271-72, 287-88; A.R.2 750-51, 765-66
(ECF No. 13-2).
Additionally, in determining Plaintiff’s mental RFC, the ALJ considered
Plaintiff’s activities of daily living compared with his alleged mental limitations;
inconsistencies in Plaintiff’s reported psychological symptoms and alleged mental
limitations; and Plaintiff’s appearance at the hearing before him. The ALJ found
that Plaintiff’s report that “he had to sit down to put on pants and did not change
clothes daily, had difficulty getting in and out of the bath tub, showered with a
shower chair, prepared only simple or microwaveable meals, had difficulty doing
chores and walking around a grocery store, and often had help with lawn care,
household chores, and shopping,” partly due to his depression, to be inconsistent
with his activities of daily living, since he was able to attend “numerous medical
appointments of record,” “grocery shop some,” “do his laundry if his mother’s
caregiver did not do it,” and “[drive] two to three times per week.” A.R. 162; see
A.R. 189, 211-14, 410-12, 421, 427-31; A.R.2 194-96, 232, 236-37, 243, 256-57, 26063. Also contrary to his prior assertions, Plaintiff told the consultative examiner
that he had no problem maintaining personal hygiene. A.R. 158, 162; A.R.2 195.
Regarding Plaintiff’s reported psychological symptoms and appearance at
the hearing, the ALJ noted that Plaintiff presented for treatment in July 2014 and
reported suffering from “depression, anxiety, and passive suicidal ideation.” A.R.
163; A.R.2 126, 141, 144-59. Plaintiff also “complained of depression and mania
17

during his consultative exam and June 2015 hospitalization,” but during mental
health appointments, he “almost always reported that his mood was okay and
complained of only anxiety.” A.R. 163; A.R.2 194-96, 204-05, 221-223, 266, 268,
270, 276, 284, 293, 295, 297, 299, 301. The ALJ found the contradictions in
Plaintiff’s alleged mental limitations compared with his activities of daily living
and reported symptoms at mental health appointments inconsistent with
“debilitating

limitations

in

daily

activities.”

A.R.

158,

162-63.

These

inconsistencies, together with the ALJ’s own observation of Plaintiff’s “difficulty
answering the specific question asked during the hearing,” the partial weight given
to the state agency consultants’ opinions, and the little weight assigned the treating
sources’ opinions, support the ALJ’s RFC determination that Plaintiff is “limited
to understanding, remembering, and carrying out simple, not detailed, tasks and
instructions.” A.R. 160, 164. Accordingly, the Court concludes that Plaintiff’s
mental RFC is supported by substantial evidence.
Conclusion
The ALJ applied the correct legal standards, and substantial evidence
supports the ALJ’s decision that Plaintiff is not disabled within the meaning of the
Social Security Act. Therefore, the hearing decision is AFFIRMED in all respects.
Signed March 28, 2019.
_____________________________
REBECCA RUTHERFORD
UNITED STATES MAGISTRATE JUDGE
18