Nerren v. Colvin

Filing 21

MEMORANDUM OPINION granting 13 Cross MOTION for Summary Judgment , denying 19 Opposed MOTION for Summary Judgment and Reply to Cross Motion for Summary Judgment (Signed by Magistrate Judge Nancy K Johnson) Parties notified.(sjones, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
§
§
Plaintiff,
§
§
v.
§
§
NANCY A. BERRYHILL,1
§
ACTING COMMISSIONER OF THE
§
SOCIAL SECURITY ADMINISTRATION, §
§
Defendant.
§

September 29, 2017
David J. Bradley, Clerk

LEE NERREN,

CIVIL ACTION NO. H-16-2205

MEMORANDUM OPINION
Pending before the court2 are Defendant’s Cross-Motion for
Summary Judgment (Doc. 13) and Plaintiff’s Motion for Summary
Judgment (Doc. 19).

The court has considered the motions, the

responses, the administrative record, and the applicable law.

For

the reasons set forth below, the court GRANTS Defendant’s motion
and DENIES Plaintiff’s motion.
I.

Case Background

Plaintiff filed this action pursuant to 42 U.S.C. §§ 405(g)
and 1383(c)(3) for judicial review of an unfavorable decision by
the

Social

Security

Administration

(“SSA”)

Commissioner

(“Commissioner” or “Defendant”) regarding Plaintiff’s claim for

1

Carolyn W. Colvin was the Commissioner of the Social Security
Administration (“SSA”) at the time that Plaintiff filed this case but no longer
holds that position. Nancy A. Berryhill is Acting Commissioner of the SSA and,
as such, is automatically substituted as Defendant. See Fed. R. Civ. P. 25(d).
2
The parties consented to proceed before the undersigned magistrate
judge for all proceedings, including trial and final judgment, pursuant to 28
U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. See Doc. 12, Ord. Dated
Sept. 29, 2016.

disability insurance benefits under Title II and for supplemental
security income under Title XVI of the Social Security Act (“the
Act”).
A.

Medical History
Plaintiff was born on May 31, 1967, and was forty-six years

old on the alleged disability onset date of June 29, 2013.3
Plaintiff, who holds a General Equivalency Diploma (GED), worked as
a painter from June 1998 to January 2001 and as a welder/boiler
maker from September 2001 to October 2011.4
1.

Physical

The medical records generally support a history of heart
disease, including two heart attacks and a coronary artery bypass
graft in the years 2010 and 2011.5

On February 27, 2013, Plaintiff

sought emergency treatment for chest pain, which led to a three-day
hospitalization.6

The treating cardiologist determined that the

chest pain did not have a cardiac origin.7
From June 14, 2013, to December 16, 2015, Plaintiff sought
treatment at Tomball Regional Medical Center emergency room many
times for various conditions, including tooth pain resulting from

3

See Tr. of the Admin. Proceedings (“Tr.”) 353-67.

4

See Tr. 404, 414-15. At the hearing, Plaintiff clarified that he had
worked as a combined welder/boiler maker. See Tr. 42, 82.
5

See Tr. 516, 525.

6

See Tr. 511-43.

7

See Tr. 521.

2

biting on a popcorn kernel, hip pain, an arm laceration resulting
from breaking a window, a hand contusion from punching a wall, a
head laceration from performing housework, an accidental finger
incision during dinner preparation, and congestion/bronchitis.8 In
August 2013, Plaintiff presented to the emergency room experiencing
involuntary movement of his arms, neck, and head and was diagnosed
with dystonic reaction to medications.9
Two

years

later,

in

December

2015,

he

returned

to

the

emergency room twice in three days, complaining of episodic shakes
on the first visit and of “intermittent feeling of shaking in his
upper body and insides and burning sensation internally” on the
second visit.10

The same attending physician treated Plaintiff on

both occasions.11

The physician first diagnosed Plaintiff with

shaking spells and discharged Plaintiff with information about
dystonias.12 Two days later, the physician diagnosed Plaintiff with
resting tremor, hot flashes, acute anxiety, and leukocytosis (high
white cell count) and discharged Plaintiff upon improvement with
information about tremors and generalized anxiety disorder.13

8

See Tr. 1138-48, 598-605, 607-13, 679-89, 997-1005, 1226-40, 1292-

9

See Tr. 642-47.

10

See Tr. 1410, 1425.

11

See Tr. 1409-33.

12

See Tr. 1427.

13

See Tr. 1414.

1308.

3

During

the

two-and-a-half-year

period

referenced

above,

Plaintiff visited the emergency room no fewer than a dozen times
for treatment of back pain and/or neck pain and/or flank pain.14
Another

frequent

complaint

registered

emergency room visits was chest pain.15

by

Plaintiff

at

other

On October 7 and 14, 2013,

Plaintiff sought emergency treatment for chest pain.16 On the first
of the two visits, Plaintiff was diagnosed with chest pain and
headache and was discharged.17
diagnosed

with

On the second, Plaintiff was

costochondritis,

which

is

the

noncardiac

inflammation of the chest area, and was discharged.18
On June 10, 2014, Plaintiff returned to the emergency room
complaining of chest pain.19

The treating physician diagnosed the

pain as musculoskeletal and discharged Plaintiff.20 In October 2014
and June 2015, Plaintiff was admitted for observation but was
diagnosed with chest pain of a noncardiac origin.21

In October

2015, Plaintiff again sought emergency treatment for chest pain but
was discharged with a diagnosis of chest pain and instructions to

14

See Tr. 631-37, 648-78, 989-96, 1015-1026, 1130-37, 1156-72, 1249-82.

15

See Tr. 590-97, 614-21, 622-30.

16

See Tr. 614-30.

17

See Tr. 625.

18

See Tr. 617.

19

See Tr. 589-97.

20

See Tr. 592.

21

See Tr. 1173-1205, 1309-39.

4

follow up on an outpatient basis.22
2.

Mental

In addition to the above discussed physical conditions, the
medical records include documentation of mental impairments.23
a.

Doctor Appointments

On November 7, 2012, Nadeema Akhtar, M.D., (“Dr. Akhtar”)
evaluated

Plaintiff

psychiatric

for

assessment,

the

first

time.24

Plaintiff’s

According

complaints

were

to

the

anxiety,

depression, anger, and agitation that started after Plaintiff’s
bypass surgery.25 Plaintiff reported that he first became depressed
when

he

could

concentrate

not

and

perform

that

he

his

began

job

due

feeling

experiencing sleep disturbance.26

to
sad

an

inability

and

anxious

to
and

Plaintiff admitted a life-long

history of anger issues, but described more recent symptoms as
anxiety,

sweating,

amplification

of

tingling

sound,

of

tunnel

fingers,

vision,

loss

muscle
of

tension,

interest

in

activities, low self esteem, guilt, helplessness, mood swings, and
ruminative thoughts.27

22

See Tr. 1434-44.

23

See, e.g., Tr. 546-49.

24

See Tr. 424, 546-49. Dr. Akhtar’s psychiatric assessment is in the
record more than once. See, e.g., 1372-75.
25

See Tr. 546.

26

See id.

27

See id.

5

Plaintiff reported two prior psychiatric hospitalizations, one
due to a suicide attempt and one due to an intentional overdose of
Seroquel (a medication used to treat schizophrenia and bipolar
disorders) with alcohol.28

He also stated that he had been on

several courses of psychotropic medications without success due to
concurrent alcohol consumption and that he was currently taking
Xanax (a medication used to treat anxiety and panic disorders), as
well as medications for hypertension, hypercholesteremia, and chest
pain.29 Although Plaintiff admitted an extensive history of alcohol
and drug usage, including cocaine, methamphetamine, and cannabis,
he stated that he had not consumed alcohol in the last six months
and had not used drugs in nearly a year.30
Dr. Akhtar diagnosed Plaintiff with major depressive disorder,
anxiety disorder, alcohol dependence, and cocaine abuse.31

She

found him to be depressed, anxious, and irritable with appropriate
affect, goal directed thought processes, no hallucinations, no
suicidal
insight

or
and

homicidal
judgment.32

ideation,
Dr.

poor

Akhtar

concentration,
identified

and

fair

problems

with

finances, work, access to healthcare, and social environment and

28

See id.

29

See Tr. 547-48.

30

See id.

31

See Tr. 550.

32

See Tr. 548.

6

determined Plaintiff’s Global Assessment of Functioning (“GAF”) to
be fifty out of one hundred, a score at the high end of the
category for “serious symptoms . . . OR any serious impairment in
social, occupational, or school functioning.”33

The doctor ordered

laboratory and medical testing, provided Plaintiff with information
about his diagnosed disorders, and prescribed Zoloft (a medication
used to treat depression, panic attacks, and other disorders),
Atarax (a medication used in this case to treat anxiety), and
Ambien (a medication used to treat sleep disorders).34
The record does not contain any indication that Plaintiff
received

treatment

evaluation.

for

the

subsequent

nine

months

after

his

On August 12, 2013, without seeing Plaintiff on that

day, Dr. Akhtar wrote a letter to Plaintiff’s counsel at that time,
opining that Plaintiff was “unable to hold a job at [that] time due
to the inability to get stable.”35

Dr. Akhtar represented that

Plaintiff had been her patient for the prior nine months but had
not responded well to several different medications.36

In further

support of her opinion that Plaintiff was unable to work, Dr.
Akhtar stated, “He remains depressed, anxious, and unable to sleep
33

Tr. 550-51; Diagnostic & Statistical Manual of Mental Disorders 34
(Am. Psychiatric Ass’n 4th ed. 2000)(replaced in 2013 by the fifth edition, which
abandoned the GAF scale in favor of the World Health Organization Disability
Assessment Schedule 2.0).
34

See Tr. 548-49.

35

Tr. 424.
Tr. 438, 1037, 1383.
36

This letter is in the record more than once.

Tr. 424.

7

See, e.g.,

well.

He also has fleeting suicidal thoughts.

He is under stress

due to multiple medical and financial problems.”37
In an October 2013 diagnosis form, Dr. Akhtar carried the same
psychiatric diagnoses from her assessment nearly a year prior, as
well

as

the

previous

GAF

score

of

fifty

and

the

previously

identified psychosocial and environmental problems.38 The earliest
treatment note in the record from a routine psychiatric appointment
was a medication maintenance note from November 25, 2013.39

Dr.

Akhtar stated that Plaintiff’s mood “continue[d] to stay easily
agitated” and that he was still waiting to receive disability
benefits but that the financial stress had decreased because his
wife was employed.40

He denied suicidal or violent thoughts and

reported sleeping and eating well.41
Other than marking “irritable” to describe Plaintiff’s mood
and noting limitations in his fund of knowledge and intellectual
functioning, Dr. Akhtar marked every aspect of the mental status
exam as within a normal range.42

For example, she noted that

Plaintiff’s motor activity was normal, his speech was normal, his

37

Id.

38

See Tr. 1370

39

See Tr. 567-70.

40

See Tr. 567.

41

See id.

42

See Tr. 568-69.

This record is duplicated at Tr. 1366-69.

8

affect was appropriate, his thought process was logical, his
immediate

recall,

recent

and

remote

memory

were

intact,

his

attention span, concentration, insight, and judgment were all
good.43
When Dr. Akhtar saw Plaintiff for the second time, three-andone-half-months later, he reported that he was not doing well
because he had served jail time for unpaid traffic tickets and had
fought with a neighbor, noting that he tended to get in arguments
with managers and to be overprotective of his wife.44

Dr. Akhtar

assessed Plaintiff’s mental status as the same as the previous
appointment except that she found Plaintiff easily distracted with
a poor fund of knowledge.45

She prescribed new medications for

Plaintiff.46
According to the records, Plaintiff began cognitive behavioral
therapy and case management on April 15, 2014.47 On April 23, 2014,
Plaintiff returned for medication maintenance, cognitive behavioral
therapy, and case management.48

Plaintiff reported doing well and

appeared better to Dr. Akhtar, although he remained isolated and

43

See id.

44

See Tr. 563.

45

See Tr. 564-65.

46

See Tr. 566.

47

See Tr. 575-76.

48

See Tr. 559-62, 573-74.

9

easily irritated.49

Dr. Akhtar adjusted Plaintiff’s medication and

indicated that the treatment plan was to continued therapy and
medication monitoring.50

The treating counselor noted that he

reported an up-and-down mood and showed progress toward his goals.51
Dr.

Akhtar

and

examinations.52

the

counselor

both

performed

mental

status

Dr. Akhtar found everything within normal limits

except for limited fund of knowledge and average intelligence; the
counselor found everything within normal limits except for fair
judgment and insight.53

On that same day, Dr. Akhtar penned a

letter “To Whom it may Concern” recommending “that [Plaintiff] not
attempt work” because he had difficulty “working due to severe
anxiety and depression which cause[d] body shaking, sweating, mood
swings, etc.”54

She represented that Plaintiff had experienced

“minimal benefits” from medication trials.55
In May and June, Plaintiff received case-management services
twice.56

On August 6, 2014, Plaintiff returned for medication

49

See Tr. 559.

50

See Tr. 562.

51

See Tr. 571.

52

See Tr. 560-61, 571.

53

See id.

54
Tr. 425. This letter is in the record more than once.
Tr. 437, 1038, 1039, 1384.
55

Tr. 425.

56

See Tr. 571-72.

10

See, e.g.,

maintenance, cognitive behavioral therapy, and case management.57
Dr. Akhtar opined that Plaintiff was very depressed due to the
denial of disability benefits and his wife’s loss of employment.58
The counselor noted that Plaintiff reported feeling irritable and
experiencing increased shaking, and the counselor observed motor
agitation and euthymic mood with congruent affect.59 In a diagnosis
form from that date, Dr. Akhtar added a diagnosis of personality
disorder, not otherwise specified, but made no other changes to the
prior diagnoses of depression, anxiety, alcohol dependence, or
cocaine abuse.60
environmental

She also identified the same psychosocial and

problems

as

previously

noted

and

opined

that

Plaintiff’s GAF score remained at fifty.61
On August 25, 2014, Plaintiff received cognitive behavioral
therapy and case management.62 After that, Plaintiff did not return
again until November 21, 2014, on which occasion he received
medication maintenance.63

Dr. Akthar did not see Plaintiff that

day, but the psychiatrist who examined Plaintiff opined that he

57

See Tr. 974-77, 980-81.

58

See Tr. 974.

59

See Tr. 980-81.

60

See Tr. 972.

This diagnosis form is duplicated in the record.

Tr. 1364-65.
61

See id.

62

See Tr. 978-79.

63

See Tr. 1359-63.

11

See

seemed worse, noting pressured speech and fidgetiness and recording
Plaintiff’s reports of decreased energy, sadness, irritability,
anxiety, and fast thoughts.64
On September 3, 2015, Daniel J. Fox, Ph.D., (“Dr. Fox”)
examined Plaintiff on behalf of the SSA.65
Plaintiff’s

treatment

records,

administered

psychiatric

interviewed

tests.66

Plaintiff

Dr. Fox reviewed
Plaintiff,
reported

and

that

he

received therapy from a psychologist one to two times a month at
his home and saw a psychiatrist for medication maintenance.67
Plaintiff

said

that

“his

treatment

ha[d]

been

helpful

in

identifying his mental issues, as well as working through his mood
symptoms.”68
Plaintiff

and

his

wife

described

Plaintiff’s

activities of daily living, and social functioning.69

symptoms,

According to

Plaintiff, he was able to complete simple tasks, but tremors made
the tasks more difficult.70
complete

complex

tasks,

64

See id.

67

See Tr. 1066.

68

Id.

69

See Tr. 1065-67.

70

Dr.

See Tr. 1064-77.

66

which

See Tr. 1359.

65

He stated that he was not able to

See Tr. 1067.

12

Fox

found

consistent

with

Plaintiff’s behavior during the evaluation.71
In testing on his intellectual functioning, Plaintiff scored
in the low average range for all indices except the processing
speed index, which registered in the extremely low range.72 Dr. Fox
noted that Plaintiff’s “greatest difficulty” was “his ability to
process[] information in a timely and efficient manner” but opined
that “his fine motor functioning and tremors likely lowered his
scores on th[e] index and [the] result should be taken with
caution.”73

Dr. Fox found it likely that Plaintiff experienced

difficulty thinking and reasoning equal to his peers, particularly
in “sustaining attention, concentrating, processing visual material
without

error,

reasoning

verbally

and

spatially,

and

holding

information in short-term memory.”74 Plaintiff evidenced “decreased
capability for visually mediated tasks and those mediated tasks
which require[d] psychomotor speed and efficiency due to fine motor
impairment.”75
Dr. Fox described Plaintiff as appropriate and cooperative but
tense and restless.76

71

See id.

72

See Tr. 1069.

73

Tr. 1070.

74

Id.

75

Tr. 1071.

76

The doctor stated that Plaintiff “appeared

See 1064.

13

to

have

significant

difficulties

with

processing

comprehension, working memory, and spatial reasoning.”77

speed,
Dr. Fox

further opined:
[Plaintiff] appeared to have difficulty with fine motor
coordination (i.e., tremors; difficulty gripping a pencil
and writing words) as well as gross motor coordination
(observed limp).
Speech was interpretable but often
difficult to understand due to stuttering.
Moderate
problems were observed with comprehension, though
[Plaintiff]
demonstrated
understanding
of
task
instructions and was able to maintain working knowledge
of instructions for the duration of a subtest.78
Dr. Fox diagnosed Plaintiff with borderline intellectual
functioning, adjustment disorder with mixed anxiety and depressed
mood, and cocaine and alcohol use disorders, both in early full
remission.79

According to the doctor, Plaintiff’s prognosis was

fair assuming he were able to gain access to regular physician
care, physical or occupational therapy, speech therapy, continued
psychotherapy, and pharmacological treatment.80

With regard to

Plaintiff’s residual functional capacity (“RFC”), Dr. Fox opined:
[Plaintiff] ha[d] the ability to understand, carry out,
and remember instructions for one-two step instructions
[sic], but ha[d] difficulty with complex instructions.
He is limited in his ability to sustain concentration and
persist in work-related activity at a reasonable pace and
without fatigue. He has limited interest in maintaining
social interaction with supervisors, co-workers, and the
public.
He is currently unable to manage routine

77

Tr. 1064-65.

78

Tr. 1065.

79

See Tr. 1071.

80

See id.

14

pressures in a competitive work setting.81
The next psychiatric treatment note in the record was dated
September 11, 2015, approximately ten months after the last prior
appointment.82

On that occasion, Dr. Akhtar noted that Plaintiff

had started taking lithium and that the results were positive.83
Plaintiff reported that his mood was “even keel,” he was sleeping
well, he was less angry and depressed, he was walking about three
miles per day, and he had not experienced any “temper tantrums.”84
Despite

Plaintiff’s

positive

reports,

Dr.

Akhtar

found

that

Plaintiff’s GAF score remained at fifty but dropped the previously
identified problem of access to healthcare.85 In the diagnosis form
that Dr. Akhtar completed on that day, she replaced Plaintiff’s
diagnoses

of

major

depression,

anxiety,

and

substance

dependence/abuse with bipolar, most recent episode depression in
partial remission and most recent episode mixed without psychotic
features.86

She continued the diagnosis of personality disorder.87

b.

Emergency Room Visits

81

Tr. 1071-72.

82

See Tr. 1344-47.

83

See Tr. 1344.

84

Id.

85

See Tr. 1348.

86

See id.

87

See id.

15

While under the care of Dr. Akhtar, Plaintiff reported to the
emergency room five times related to Plaintiff’s inclination to
harm himself.

In July 2014, Plaintiff cut his left wrist but

reported that he was not experiencing suicidal ideation.88

He

reported being upset about the denial of disability benefits.89
Medical personnel sutured the laceration and released Plaintiff for
outpatient follow up.90
In November 2014, Valeria Contreras, M.D., (“Dr. Contreras”)
performed an emergency psychiatric evaluation of Plaintiff.91

His

chief complaint was that “[e]verything [was] just piling up on
[him]” and that he was experiencing the non-suicidal desire to cut
himself.92

He reported feeling guilty for past substance abuse and

other past actions and feeling unable to control his urges to cut,
especially when alone.93

Plaintiff stated that his medications had

not been keeping him stable for the prior several months.94
Plaintiff further described his then-current symptoms as including
depressed

mood,

insomnia,

88

Tr. 1396.

93

and

See Tr. 1396-1401.

92

appetite,

See 1008-09.

91

variable

See Tr. 1006.

90

energy,

See Tr. 1006-13.

89

low

See id.

94

See Tr. 1396; Diagnostic & Statistical Manual of Mental Disorders 34
(Am. Psychiatric Ass’n 4th ed. 2000).

16

auditory hallucinations featuring his name.95
Dr. Contreras opined that Plaintiff’s GAF score was 35 (in the
middle of the category for major impairment in several areas),
modified Plaintiff’s medications, and ordered an intramuscular dose
of Benadryl.96

Plaintiff remained at the hospital, sleeping for

most of the day.97 Upon assessment that evening, Plaintiff reported
feeling “much better” after sleeping.98

The examining physician at

that time recorded a normal mental status examination with fair
judgment and insight and assessed Plaintiff a GAF score of fiftyfive to sixty (at the high end of the category for moderate
difficulty).99
On three occasions in the summer of 2015, Plaintiff sought
treatment for self-inflicted arm lacerations.100

On the first

occasion, Plaintiff described feeling depressed.101

The physician

closed the wound with staples and discharged Plaintiff.102
On the second occasion, Plaintiff explained that he had “had

95

See Tr. 1396, 1399.

96

See Tr. 1399; Diagnostic & Statistical Manual of Mental Disorders 34
(Am. Psychiatric Ass’n 4th ed. 2000).
97

See Tr. 1400.

98

Id.

99

See Tr. 1401.

100

See Tr. 1114-29, 1149-55, 1212-25.

101

See Tr. 1219.

102

See Tr. 1218-19.

17

a bad day recently and cut himself . . . to try and get some
relief.”103 He stated that he was experiencing anxiety and sleeping
problems

but

denied

depression,

suicidal

ideation,

ideation, or the desire to harm himself further.104

homicidal

The physician

sutured the laceration and discharged Plaintiff.105
On

the

third

occasion,

Plaintiff

stated

that

he

was

experiencing depression, anxiety, and agitation due to financial
and housing difficulties and cut himself to relieve emotional pain,
anxiousness, and stress.106

After suturing the laceration, the

physician discharged Plaintiff.107
B.

Application to Social Security Administration
Plaintiff first applied for disability insurance benefits and

supplemental security income in 2012, and those claims were closed
in January 2014 after the Appeals Council’s review.108

On May 5,

2014, Plaintiff again filed applications for disability insurance
benefits and supplemental security income, claiming an inability to
work since June 29, 2013, due to bypass surgery, depression,
anxiety, agoraphobia, panic attacks, coronary artery disease,
103

Tr. 1150.

104

See Tr. 1150, 1152.

105

See Tr. 1152-53.

106

See Tr. 1115.

107

See Tr. 1121-22.

108

See Tr. 157, 195.
The ALJ’s decision date for Plaintiff’s 2012
applications was June 28, 2013. See id. Therefore, the earliest possible onset
date for the current applications was June 29, 2013. See Tr. 401.

18

hypertension, high cholesterol, and heart attack.109
On June 30, 2014, the SSA found Plaintiff not disabled at the
initial level of review.110

The medical expert who reviewed the

record and completed the physical RFC assessment found Plaintiff
capable of frequently lifting or carrying twenty-five pounds,
standing and/or walking for six hours in an eight-hour day and
sitting for six hours in an eight-hour day with no additional
limitations.111
The medical expert who reviewed the record and completed the
Psychiatric Review Technique and Mental RFC Assessment found that
Plaintiff did not meet the requirements of any of the listings of
the regulations112 (the “Listings”).113
mental

RFC,

she

concentration

and

understanding

and

found

that

Plaintiff

persistence
memory

With regard to Plaintiff’s

and

had

that,

limitations

and

no

limitation

although
social

he

in
had

interaction

limitations, he was moderately limited only in the areas of
detailed instructions, interaction with the general public, and
interaction with supervisors and not significantly limited in any

109

See Tr. 156-57, 353-67, 377.
An SSA employee completed
applications for Plaintiff online on May 5, 2014. See Tr. 368.
110

See Tr. 165-66, 176-77, 178-79.

111

See Tr. 161-62, 172-73.

112

20 C.F.R. Pt. 404, Subpt. P, App. 1.

113

See Tr. 159-60, 170-71.

19

the

area.114

In the expert’s opinion, Plaintiff could “understand,

remember, carry out detailed but not complex instructions, make
decisions, attend and concentrate for extended periods[,] . . .
accept instructions[,] and respond appropriately to changes in a
routine work setting.”115
In a function report completed in July 2014, Plaintiff’s wife
reported that Plaintiff experienced shortness of breath, panic
attacks, depression, hypertension, nervous shakes, and an inability
to tolerate crowds.116

Plaintiff’s wife listed Plaintiff’s waking

activities as making coffee if the “shake[s]” were not too bad,
dressing, and watching television.117

His wife stated that she had

to remind him to feed the pets, to put on clean clothes, to tend to
his personal hygiene, and to take his medication.118
Plaintiff’s wife also reported that Plaintiff did not complete
any house or yard work, did not go outside “hardly ever,” could not
handle being around people, did not drive, did not shop, and got
upset and shaky when trying to deal with money.119

According to the

report, Plaintiff’s impairments affected every physical ability

114

See Tr. 162-63, 173-74.

115

Tr. 163, 174.

116

See Tr. 436.

117

Tr. 439.

118

See Tr. 439-40.

119

See Tr. 440-41.

20

except

talking

and

seeing

and

every

mental

ability

except

understanding.120 The wife reported that Plaintiff was able to walk
no further than a few steps before requiring rest for “a long
period of time,” was able to pay attention for only a “very short
time,” and was not able to follow written or spoken instructions
well.121
In a function report completed by his wife in September 2014,
she

again

reported

that

Plaintiff

experienced

shakiness

and

lightheadedness and described Plaintiff as having a tendency to
become upset and an inability to interact with others or follow
instructions.122

The wife further stated that Plaintiff became

anxious or nervous and started to shake upon going outside,
shopping, or handling money and that he did not drive for that same
reason.123
Regarding his abilities, Plaintiff’s wife stated that he was
limited in all of the physical and mental activities listed due to
exhaustion but specifically identified lifting, squatting, bending,
walking, kneeling, stair climbing, remembering, completing tasks,
concentrating, following instructions, and getting along with

120

See Tr. 443.

121

See id.

122

See Tr. 454-58.

123

See Tr. 456.

21

others.124

“Using

Hands”

was

not

marked

as

affected

by

his

impairments.125
Upon reconsideration of the initial denial, the SSA again
found Plaintiff not disabled.126

The medical expert who reviewed

the

physical

record

and

completed

the

RFC

assessment

found

Plaintiff capable of frequently lifting or carrying only ten pounds
but agreed with the prior RFC assessment regarding Plaintiff’s
ability to stand and/or walk and sit and regarding his lack of
limitation on pushing and/or pulling.127

She imposed additional

postural limitations not recognized at the initial level but no
other limitations.128
The medical expert who reviewed the record and completed the
Psychiatric Review Technique and Mental RFC Assessment found that
Plaintiff did not meet the requirements of any Listing.129
regard

to

mental

RFC,

she

agreed

with

the

prior

mental

With
RFC

assessment on understanding and memory limitations and social
interaction limitations but found that Plaintiff was moderately
limited in the one additional area: the ability to carry out

124

See Tr. 459.

125

See id.

126

See Tr. 193, 207-09.

127

See Tr. 188, 202-03.

128

See Tr. 188-89, 202.

129

See Tr. 186-87, 200-01.

22

detailed instructions under the category of sustained concentration
and persistence.130

She echoed, word for word, the prior expert’s

opinion on Plaintiff’s ability with regard to detailed but not
complex instructions, decision making, attention and concentration,
instructions, and changes in work setting.131
On October 26, 2014, Plaintiff requested a hearing before an
administrative law judge (“ALJ”) of the SSA.132

The ALJ granted

Plaintiff’s request and conducted a hearing on June 11, 2015.133
However, that hearing was continued because Plaintiff appeared
without representation and the ALJ decided to allow Plaintiff an
opportunity

to

obtain

counsel.134

The

ALJ

also

ordered

a

consultative examination, which Dr. Fox conducted on September 3,
2015.135

After

Plaintiff’s

counsel

filed

an

Appointment

of

Representative form, the ALJ rescheduled the hearing for February
8, 2016.136
C.

Hearing
At the hearing, Plaintiff and his wife as well as a vocational

130

See Tr. 190-91, 203-05.

131

Compare Tr. 163, 174 with Tr. 191, 205.

132

See Tr. 235.

133

See Tr. 89-96, 244.

134

See Tr. 89-94.

135

See Tr. 94.

136

See Tr. 266-67.

23

expert, Vickie D. Colenburg (“Colenburg”), and a medical expert,
George Lazar, Ph.D., (“Dr. Lazar”), testified.137

Plaintiff was

represented by an attorney.138
When the ALJ asked Plaintiff which medication caused him to
experience

tremors,

Plaintiff

medication

used

treat

to

specifically

bipolar

named

disorder)

and

Lithium

(a

Zyprexa

(a

medication used to treat schizophrenia, bipolar disorder, and, in
combination with other medication, depression), both of which he
had been taking for fewer than six months at the time of the
hearing.139 After a few other questions about Plaintiff’s past work
and past substance abuse, the ALJ turned to questioning Dr.
Lazar.140
According to Dr. Lazar, the record reflected that, when
Plaintiff was sober and received mental health treatment, he showed
improvement.141
in 2015.142

Dr. Lazar also stated that Plaintiff had relapsed

Dr. Lazar found that the most recent mental health

records indicated that Plaintiff was improving on Lithium and
explained that, whether Plaintiff’s diagnoses of bipolar disorder

137

See Tr. 38-88, 342, 344.

138

See Tr. 40.

139

See Tr. 41.

140

See Tr. 42-44.

141

Tr. 45.

142

Id.

24

and personality disorder met or equaled any of the disorders
described

in

the

Listings

depended

on

Plaintiff’s

substance

abuse.143

“[W]ith drugs, he meets [Listing] 12.04 [(Affective

Disorders)] and [Listing] 12.06 [(Anxiety and Obsessive-Compulsive
Disorders)], but without drugs when he’s sober, he meets only
paragraph A of [Listing] 12.04 and [Listing] 12.08 [(Personality
and

Impulse-Control

Disorders)].”144

Dr.

Lazar

opined

that

Plaintiff’s rating was moderate in the paragraph B categories of
activities

of

daily

living,

attention

and

concentration,

and

socialization.145 Plaintiff’s attorney argued that Dr. Lazar’s view
of

Plaintiff’s

substance

abuse

“colored

the

doctor’s

whole

testimony as to whether or not [Plaintiff met] a listing, and it
even colored his testimony as to his interpretation of Dr. Daniel
Fox’s consultative evaluation.”146
Dr. Lazar and Plaintiff’s attorney discussed Dr. Fox’s report
at length, and Dr. Lazar pointed to what he believed to be errors
in Dr. Fox’s report, suggesting that the examiner “lack[ed] . . .
concentration,” was not “very familiar” with the SSA’s definitions,
or “made a mistake.”147

143

See Tr. 46.

144

Id.

145

Id.

146

Tr. 68.

147

Relying on Dr. Fox’s comments on processing

See Tr. 51-59.

25

speed, Dr. Lazar stated:
And we know that [Plaintiff] has severe tremors, and that
the examiner mentioned that his fine-motor functioning
and tremors likely lowered the scores. So that 53 maybe
does not reliably reflect his real processing speed. If
you take out the motor component, probably it would have
been higher.148
Upon questioning by Plaintiff’s attorney, Dr. Lazar stated
that the etiology of cutting behavior can be anger, lack of
feeling, or need for attention.149

Dr. Lazar said that the record

from the July 2014 cutting incident did not specify an etiology.150
With regard to how cutting behavior fits into the Listings, Dr.
Lazar said that individuals with borderline personality disorders
engaged in self-mutilation and that Plaintiff was diagnosed with a
personality disorder.151

Plaintiff, however, did not meet the

severity for the paragraph B criteria.152
Plaintiff’s
issues.153

attorney

questioned

Plaintiff

about

several

In the course of the questioning, Plaintiff stated that

he had a herniated disc and that he experienced difficulty walking,
bending, and stooping.154

148

Tr. 60.

149

See Tr. 67.

150

See id.

151

See id.

152

See Tr. 67-68.

153

See Tr. 69-76.

154

Plaintiff also stated that he stopped

See Tr. 71.

26

using drugs and consuming alcohol on June 3, 2011, and denied a
relapse in 2015.155
Plaintiff stated that he had not driven in the prior two years
because he was unable to “focus and concentrate good enough.”156
Plaintiff stated that he slept between five and seven hours each
night and awoke to “everyday worries.”157

He added that he returned

to sleep mid-morning for about three hours.158

Plaintiff said that

his wife would ask him to take care of certain things at the house
while she was at work, but he was not always able to complete the
tasks because he would forget.159

He also stated that he had

trouble writing his name “because I’m nervous, nervousness and
shaking.”160

In response to the question whether the shaking ever

stopped, Plaintiff said, “It seems like sometimes when I first get
up in the mornings, I’m kind of calm, you know, until the day gets
going, and go to thinking [sic].”161

Plaintiff described his

cutting behaviors in this manner:
I get -- I want so much more for my family than I’ve been
able to give, and like just worrying about things, it
manifests in me. And when I do it, it’s like I told the
155

See Tr. 72.

156

Tr. 74.

157

Id.

158

See Tr. 75.

159

See id.

160

Id.

161

Id.

27

doctor, it sounds stupid. It’s like a zone. I just need
some relief, and it gives me relief for a few seconds.
It doesn’t hurt for that little bit. It’s my way out
without having to involve anybody, anybody else, or hurt
anybody else.162
Plaintiff’s wife followed him on the stand.163

Plaintiff’s

wife testified that Plaintiff had not been the same person since he
had a heart attack, listing in particular Plaintiff’s “handling
things,”

“his

nervousness,

his

shaking,”

and

“[h]is

whole

disposition.”164 The wife confirmed that Plaintiff stopped drinking
in 2012 and that he had not used drugs or consumed alcohol since
then.165
Plaintiff’s medication negatively affected his memory, his
wife said, and she called him three to four times a day while she
was at work to inquire whether he had taken his medications and
whether he was completing the tasks she had asked him to do.166

On

her days off, Plaintiff’s wife said, she observed Plaintiff lying
down for three to four hours and attributed it to fatigue from the
medication.167
At the conclusion of Plaintiff’s wife’s testimony, Colenburg

162

Tr. 75-76.

163

See Tr. 76.

164

Tr. 78.

165

See Tr. 78-79.

166

See Tr. 80.

167

See Tr. 81.

28

took the stand to discuss Plaintiff’s past work history and the
capability of an individual with Plaintiff’s RFC to perform those
or other jobs.168 Colenburg considered Plaintiff’s welder job to be
at a medium exertional level and skilled and his boiler maker job
to be at a heavy exertional level and skilled.169
The ALJ presented the following hypothetical individual:
Assume he had a residual functional capacity to do light
work, lift up to 20 pounds occasionally, lift and carry
up to 10 pounds frequently; stand and walk six out of
eight, sit six out of eight; no ladders, ropes, or
scaffolds. The rest of the postural limitations [would]
be frequent. Overhead reaching, reach, handle, finger,
and feel bilaterally would be frequent.
No moving
machinery or unprotected heights and open flames. Simple
work, no tandem, no team work, no pace work, and
occasional contact with coworkers and the public.170
Colenburg stated that such an individual would be able to perform
work as an office cleaner, laundry folder, non-postal mail clerk,
all of which were categorized as light and unskilled.171

The ALJ

adjusted the hypothetical person’s limitations to only occasional
fine motor movements with frequent gross motor movements, and
Colenburg

said

that

such

a

person

could

perform

the

three

identified jobs.172
Plaintiff’s attorney asked Colenburg to “[a]ssume that the

168

See Tr. 82-87.

169

See Tr. 82.

170

Tr. 82-83.

171

See Tr. 83.

172

See id.

29

hypothetical individual could not complete a task in a timely
manner.”173 After Plaintiff’s attorney clarified that timely manner
meant workmanlike manner, Colenburg said that the person would not
be able to maintain competitive employment.174

In a detailed

discussion with Plaintiff’s attorney, Colenburg explained that the
three cited jobs involved “one, two, three steps but just simple,
routine work that an individual is doing constantly, every day, all
day, the same job” and that, in her opinion, a hypothetical
individual capable of one, two step tasks would be able to perform
all three cited jobs but certainly the laundry folder position.175
She also clarified that the three jobs all required gross handling
but not fine fingering.176
D.

Commissioner’s Decision
On October 24, 2014, the ALJ issued an unfavorable decision.177

The ALJ found that Plaintiff met the requirements of insured status
through December 31, 2016, and that Plaintiff had not engaged in
substantial gainful activity from June 29, 2013, the alleged onset
date, through the date of the ALJ’s decision.178

173

Id.

174

See Tr. 84.

175

See Tr. 84-85.

176

See Tr. 85.

177

See Tr. 9-31.

178

See Tr. 12, 14-15.

30

The

ALJ

recognized

the

following

impairments

as

severe:

depression, anxiety, drug and alcohol abuse, obesity, and coronary
artery disease.179
was

not

a

severe

However, he found that Plaintiff’s back issue
impairment

and

that

Plaintiff’s

borderline

intellectual functioning and intellectual disability were not
medically determinable impairments.180 The ALJ thoroughly discussed
Plaintiff’s medical treatment for his impairments, including Dr.
Akhtar’s notes and Dr. Fox’s evaluation.181
Concerning Dr. Akhtar, the ALJ discussed the doctor’s August
2013 and April 2014 letters and found that the opinions expressed
in those letters were conclusory and not consistent with her
underlying treatment notes and the medical record as a whole.182 He
also stated that Dr. Akhtar failed to take into consideration
Plaintiff’s

substance

abuse

or

Plaintiff’s

admission

that

psychotropic medications previously had not worked due to his
ongoing substance abuse.183

The ALJ also noted the inconsistency

between Dr. Akhtar’s generally unremarkable mental health findings
and her regular assessment of GAF scores in the range of serious

179

See Tr. 15.

180

See id.

181

See Tr. 15-20, 25-28.

182

See Tr. 19, 27-28.

183

See id.

31

symptoms.184

As a result, the ALJ afforded Dr. Akhtar’s opinions

little weight.185
The ALJ found Dr. Fox’s opinions entitled to some weight with
regard to his suggested RFC but found Dr. Fox’s opinions only
partially supported by his findings and the record as a whole.186
The ALJ also noted that both Dr. Fox and Dr. Lazar questioned the
validity of the processing-speed test results because of the effect
of Plaintiff’s tremors on testing.187

The ALJ afforded significant

weight to Dr. Lazar’s opinions, finding them to be consistent with
the record as a whole.188
At the Listing step, the ALJ found that Plaintiff met the
requirements of several mental health listings “[i]n the presence
of substance abuse” but met none if the abuse were discontinued.189
Based on the ALJ’s determination that Plaintiff did not meet a
Listing when sober, the ALJ continued his analysis to the RFC step
assuming the discontinuation of substance abuse.190

184

See Tr. 26, 29.

185

See Tr. 19, 26, 27, 29.

186

See Tr. 20, 27-28.

187

See Tr. 20, 24, 28.

188

He found that

See Tr. 20, 27.

189

Tr. 16-22. Pointing out the conflicting sobriety dates reflected in
the record, the ALJ explained that, if substance abuse is a contributing factor
material to the determination, then the disability analysis is based on whether
Plaintiff would be found disabled if he discontinued the use of drugs or alcohol.
See Tr. 13, 16-17, 20, 30-31 (citing 20 C.F.R. §§ 404.1535, 416.935).
190

See Tr. 22.

32

Plaintiff, absent substance abuse, would have the RFC to perform
light work as defined in the regulations with the following
limitations: “no climbing ladders, ropes, or scaffolds; frequent
bending, stooping, kneeling, crouching, and crawling; frequent
overhead reaching, reaching, handling, fingering, and feeling
bilaterally; no exposure to moving machinery, unprotected heights,
or open flames; simple work; no tandem, teamwork, or pace work; and
occasional contact with coworkers and the public.”191
In reaching the RFC assessment, the ALJ discussed Plaintiff’s
testimony, his wife’s reports and testimony, and Dr. Lazar’s
testimony

in

addition

to

the

medical

evidence.192

The

ALJ

particularly relied on Dr. Lazar’s testimony that Plaintiff showed
improvement when sober and when taking Lithium, and that, although
Plaintiff experienced moderate limitations in activities of daily
living, social functioning, and concentration, persistence, or
pace, he experienced no episodes of decompensation and was capable,
when

sober,

instructions,

of

understanding

sustaining

and

concentration

remembering
at

a

1-2-3

step

reasonable

pace,

managing routine pressures in a competitive setting.193
The ALJ found Plaintiff unable to perform his past relevant
work of welder and boiler maker based on the vocational testimony

191

Tr. 22-23.

192

See Tr. 23-24.

193

See id.

33

at the hearing.194
perform

a

full

Because the ALJ found Plaintiff unable to

range

of

light

work,

the

ALJ

proceeded

to

consideration of whether there were a significant number of jobs in
the national economy that Plaintiff could perform.195

Based on

Colenburg’s response to the ALJ’s hypothetical question asking
whether a person with Plaintiff’s age, education, work experience,
and RFC could perform any such job, the ALJ stated that he found
Plaintiff capable of performing the requirements of the unskilled
occupations of office cleaner, laundry folder, and non-postal mail
clerk.196

Therefore,

the

ALJ

found

that

Plaintiff

was

not

disabled.197
Plaintiff appealed the ALJ’s decision, and, on May 19, 2016,
the Appeals Council denied Plaintiff’s request for review.198

The

Appeals Council’s ruling transformed the ALJ’s decision into the
final decision of the Commissioner.199

After receiving the Appeals

Council’s denial, Plaintiff sought judicial review of the decision
by this court.200
II.

Standard of Review and Applicable Law

194

See Tr. 29.

195

See Tr. 30.

196

See id.

197

See Tr. 31.

198

See Tr. 1-3, 5-6.

199

Tr. 1.

200

See Doc. 1, Pl.’s Orig. Compl.

34

The court’s review of a final decision by the Commissioner
denying disability benefits is limited to the determination of
whether: 1) the ALJ applied proper legal standards in evaluating
the record; and 2) substantial evidence in the record supports the
decision.
A.

Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002).

Legal Standard
In order to obtain disability benefits, a claimant bears the

ultimate burden of proving he is disabled within the meaning of the
Act.

Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991).

Under

the applicable legal standard, a claimant is disabled if he is
unable “to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment. . . which
has lasted or can be expected to last for a continuous period of
not less than twelve months.”

42 U.S.C. § 423(d)(1)(a); see also

Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994).

The

existence of such a disabling impairment must be demonstrated by
“medically acceptable clinical and laboratory diagnostic” findings.
42 U.S.C. § 423(d)(3), (d)(5)(A); see also Jones v. Heckler, 702
F.2d 616, 620 (5th Cir. 1983).
To determine whether a claimant is capable of performing any
“substantial

gainful

activity,”

the

regulations

provide

that

disability claims should be evaluated according to the following
sequential five-step process:
(1) a claimant who is working, engaging in a substantial
gainful activity, will not be found to be disabled no
35

matter what the medical findings are; (2) a claimant will
not be found to be disabled unless he has a “severe
impairment;” (3) a claimant whose impairment meets or is
equivalent to [a Listing] will be considered disabled
without the need to consider vocational factors; (4) a
claimant who is capable of performing work that he has
done in the past must be found “not disabled;” and (5) if
the claimant is unable to perform his previous work as a
result of his impairment, then factors such as his age,
education, past work experience, and [RFC] must be
considered to determine whether he can do other work.
Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994); see also 20
C.F.R. § 416.920.

The analysis stops at any point in the process

upon a finding that the claimant is disabled or not disabled.
Greenspan, 38 F.3d at 236.
B.

Substantial Evidence
The widely accepted definition of “substantial evidence” is

“that quantum of relevant evidence that a reasonable mind might
accept as adequate to support a conclusion.” Carey v. Apfel, 230
F.3d 131, 135 (5th Cir. 2000).

It is “something more than a

scintilla but less than a preponderance.”

Id.

The Commissioner

has the responsibility of deciding any conflict in the evidence.
Id.

If the findings of fact contained in the Commissioner’s

decision are supported by substantial record evidence, they are
conclusive, and this court must affirm.

42 U.S.C. § 405(g);

Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).
Only if no credible evidentiary choices of medical findings
exist to support the Commissioner’s decision should the court
overturn it.

Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir.

36

1988).

In applying this standard, the court is to review the

entire record, but the court may not reweigh the evidence, decide
the issues de novo, or substitute the court’s judgment for the
Brown v. Apfel, 192 F.3d 492, 496 (5th

Commissioner’s judgment.
Cir. 1999).

In other words, the court is to defer to the decision

of the Commissioner as much as is possible without making its
review meaningless.

Id.
III. Analysis

Plaintiff requests judicial review of the ALJ’s decision to
deny

disability

benefits.

Plaintiff

asserts

that

the

ALJ’s

decision contains the following errors: (1) failure to properly
evaluate Dr. Akhtar’s opinion; and (2) failure to consider in
developing the RFC all limitations resulting from Plaintiff’s fine
motor functioning and tremors.

Defendant argues that the ALJ’s

decision is legally sound and is supported by substantial evidence.
A.

The ALJ Properly Evaluated Dr. Akhtar’s Opinion
The ALJ must evaluate every medical opinion in the record and

decide what weight to give each.
416.927(c).
weight

See 20 C.F.R. §§ 404.1527(c),

The ALJ is required to give good reasons for the

given

a

treating

source’s

404.1527(c)(2), 416.927(c)(2);

opinion.

20

C.F.R.

§§

SSR 96-2p, 1996 WL 374188, at *5

(July 2, 1996).
When the determination or decision . . . is a denial[,]
. . . the notice of the determination or decision must
contain specific reasons for the weight given to the
treating source’s medical opinion, supported by the
37

evidence in the case record, and must be sufficiently
specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source’s
medical opinion and the reasons for that weight.
SSR 96-2p, 1996 WL 374188, at *5.
The regulations require that, when a treating source’s opinion
on the nature and severity of a claimant’s impairments “is wellsupported

by

medically

acceptable

clinical

and

laboratory

diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record,” it is to be given
controlling weight.

20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2);

SSR 96-2p, 1996 WL 374188, at *1.
When the ALJ does not give a treating physician’s opinion
controlling

weight,

he

must

apply

the

following

nonexclusive

factors to determine the weight to give the opinion: (1) the
“[l]ength of the treatment relationship and the frequency of
examination;”

(2)

the

“[n]ature

and

extent

of

the

treatment

relationship;” (3) the relevant medical evidence supporting the
opinion; (4) the consistency of the opinion with the remainder of
the medical record; and (5) the treating physician’s area of
specialization.

20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).

However, the ALJ is only required to consider these factors in
deciding what weight to give a medical source opinion; he is not
required to record in writing every step of the process. 20 C.F.R.
§§ 404.1527(c), 416.927(c) (“Unless we give a treating source’s
opinion controlling weight . . . we consider all of the following
38

factors

in

deciding

the

weight

we

give

to

any

medical

opinion.”)(emphasis added).
Plaintiff acknowledges that a treating physician’s opinion “as
to whether a claimant has the ability to work is a finding reserved
to the Commissioner.”201

Plaintiff continues:

However, Plaintiff submits that Dr. Akhtar’s advisory,
based on her long history of treating with Plaintiff,
that Plaintiff ‘should not attempt to work’ is a medical
indication that working may cause Plaintiff’s condition
to worsen. Thus, it is not a finding as to Plaintiff’s
‘disability,’ but, instead, it is more akin to prescribed
medical treatment by a physician.
As this Court is
aware, the regulations will find a claimant’s failure to
follow prescribed medical treatment to be grounds for
finding a claimant is not disabled. Here, however, by
finding that Plaintiff is not disabled, the Commissioner
is essentially requiring the claimant to not follow the
advice of her treating psychiatrist.202
While admittedly clever, Plaintiff’s artificial conundrum is wholly
frivolous.
Dr. Akhtar’s opinion expressed in the April 2014 letter “To
Whom it may Concern” is not even arguably a “prescribed medical
treatment” and, by its own wording, was not directed to Plaintiff
at all.203 Nothing in Dr. Akhtar’s medication maintenance note from
that day reflected that part of Plaintiff’s treatment plan was to
“not attempt work.”204

In fact, Dr. Akhtar’s recorded treatment

201

Doc. 19, Pl.’s Mot. for Summ. J. p. 6 (emphasis in original)(citing
20 C.F.R. § 404.1527).
202

Id. pp. 6-7 (emphasis in original).

203

Id. p. 7; Tr. 425.

204

Tr. 425.

39

plan was to continue therapy and medication maintenance.
Plaintiff also contends that the ALJ failed to provide the
required detailed analysis of Dr. Akhtar’s opinion.

This argument

evidences a misinterpretation of the legal requirements and a
misreading the ALJ’s decision.

As explained above, when an ALJ is

not

of

required

to

discuss

all

the

factors

outlined

in

the

regulations when giving a treating physician’s opinion less than
controlling weight. See 20 C.F.R. §§ 404.1527(c), 416.927(c). The
ALJ is only required to give good reasons that are sufficiently
specific for subsequent reviewers to understand the weight given
and the reasons for the weight given a treating physician’s
opinion.

See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); SSR 96-

2p, 1996 WL 374188, at *5.
Here, the ALJ did discuss the weight that he gave to Dr.
Akhtar’s opinion, specifically noting that her failure to consider
Plaintiff’s substance abuse or his admission that prior medication
trials had failed due to substance use supported his decision to
afford Dr. Akhtar’s opinion less than controlling weight.

The ALJ

added that Dr. Akhtar’s records reflected essentially normal mental
status exams; yet, she, throughout her treatment, she did not
change Plaintiff’s GAF score to reflect his level of functioning.205
Based on these observations, the ALJ determined that the doctor’s

205

Even when Dr. Akhtar noted positive results from Lithium, a level
mood, improved sleep, decreased anger and depression, and increased exercise, she
did not improve Plaintiff’s GAF score. See Tr. 1344-47.

40

opinion regarding Plaintiff’s inability to work was not supported
by medical evidence that demonstrated a complete inability to work.
The court further notes that the record reflects no treatment
by Dr. Akhtar between when she first evaluated Plaintiff in
November 2012 and the August 2013 letter she wrote opining that
Plaintiff was “unable to hold a job.”206

The initial evaluation

cannot be said to support that conclusion and neither can nine
months without treatment.

At the time of that letter, Dr. Akhtar

could not have been considered even a treating physician as she had
seen Plaintiff only once.

Her representation in the letter that

Plaintiff had not responded well to several medications clearly did
not emanate from her own treatment of Plaintiff because no record
indicates that she prescribed various medication trials.

Rather,

the representation appears to be based on Plaintiff’s admission to
Dr. Akhtar at the evaluation that several medications had not
worked due to his alcohol use.
Without a doubt, the ALJ fulfilled his obligations to evaluate
Dr. Akhtar’s opinion and to express good reasons for the weight the
ALJ afforded it.

206

Tr. 424.
Plaintiff suggests that Dr. Akhtar’s opinion on Plaintiff’s inability to
maintain employment is consistent with Dr. Fox’s opinion that Plaintiff was
unable to manage routine pressures in a competitive work setting. While the
court finds that Plaintiff is reading more into the two doctors’ opinions in
order to find mutual support, the court notes that, regardless, Dr. Fox’s opinion
is directly contradicted by the medical expert initially reviewing Plaintiff’s
application. See Tr. 163, 174. The ALJ is tasked with resolving all conflicts
in evidence.

41

B.

The ALJ Considered All Limitations Supported by the Record
A claimant’s RFC is his remaining ability to work despite all

of the limitations resulting from his impairment. See 20 C.F.R. §§
404.1545(a); 416.945(a). In reaching a decision on RFC, the ALJ is
required

to

perform

a

function-by-function

assessment

of

“an

individual’s ability to do sustained work-related physical and
mental activities in a work setting on a regular and continuing
basis.”

Myers v. Apfel, 238 F.3d 617, 620 (5th Cir. 2001)(quoting

SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996)).
provide

that,

regarding

a

although

the

claimant’s

RFC

opinion
must

be

of

a

The regulations

treating

considered,

the

physician
ultimate

responsibility for determining this issue lies with the ALJ.

20

C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); Taylor v. Astrue, 706 F.3d
600, 602-03 (5th Cir. 2012).
Plaintiff argues the ALJ failed to incorporate the effects of
Plaintiff’s difficulty with fine motor functioning and tremors into
the RFC, stating that Dr. Fox, Dr. Lazar, and the ALJ found:
“psychological testing indicating that Plaintiff ha[d] extremely
low processing speed [was] likely affected by his limitations in
fine motor functioning and tremors.”207

Putting it in other terms,

Plaintiff proffers that “the doctors and ALJ [found] that, but for
Plaintiff’s tremors, Plaintiff’s processing speed may have been
higher.”

207

Doc. 19, Pl.’s Mot. for Summ. J. p. 8.

42

In actuality, the opinions of both Dr. Fox and Dr. Lazar did
not take the position that Plaintiff’s fine motor functioning and
tremors lowered his processing speed but that the test results were
possibly skewed because those limitations interfered with the
testing of processing speed.

So, Plaintiff’s argument rests on an

improper premise, to wit, that the fine motor limitations and
tremors lowered his processing speed.

They may have lowered his

test score, not his processing speed, meaning that Plaintiff’s
processing speed may actually have been faster than the results
suggested.

Dr. Fox and Dr. Lazar agreed that the results were not

completely reliable.
Plaintiff also argues that his fine motor limitation prevented
him

from

performing

frequent

handling

performing any of the jobs cited.

and,

therefore,

from

Plaintiff cites the Dictionary

of Occupational Titles as including frequent handling for all three
identified job titles.
Dr.

Fox

did

note

that

Plaintiff

exhibited

fine

motor

limitations in that he had difficulty gripping a pencil and writing
words and that Plaintiff experienced tremors, but the only observed
difficulty with gross motor coordination was a limp.

Despite Dr.

Fox’s opinion, the ALJ did not include fine motor limitations in
Plaintiff’s RFC.

However, at the hearing, the ALJ modified his

initial hypothetical person’s limitations to only occasional fine
motor movements and frequent gross motor movements, which is

43

consistent with Dr. Fox’s opinion.
Colenburg responded that such a person could perform the work
of office cleaner, laundry folder, non-postal mail clerk with those
additional

limitations.

The

Fifth

Circuit

has

held

that

a

vocational expert “is familiar with the specific requirements of a
particular occupation, including working conditions and attributes
and skills needed.”

See Carey, 230 F.3d at 145 (quoting Fields v.

Bowen, 805 F.2d 1168, 1170 (5th Cir. 1986). Colenburg’s description
of

the

job

opinion.

requirements

Colenburg’s

hypothetical

question,

provided

testimony
which

sufficient

in

support
to

response

included

all

of

for

modified

the

the

her

limitations

supported by the record, provides substantial evidence in support
of

the

ALJ’s

finding

of

non-disability,

rendering

the

ALJ’s

exclusion of a fine motor limitation from his final RFC to be
harmless error.
To the extent the ALJ erred in not including a limitation to
occasional fine motor functioning, the error was harmless as the
determination of non-disability was supported by the vocational
expert’s testimony.
C.

The ALJ’s Decision is Affirmed
The

standards

court
in

determination.

finds

that

evaluating

the
the

ALJ

applied

evidence

and

the
in

proper
making

legal
his

The decision finding Plaintiff not disabled is

supported by substantial record evidence.

44

Therefore, the ALJ’s

decision is affirmed.
IV. Conclusion
Based on the foregoing reasons, the court DENIES Plaintiff’s
motion and GRANTS Defendant’s motion.
SIGNED in Houston, Texas, this 29th day of September, 2017.

______________________________
U.S. MAGISTRATE JUDGE

45