Marroquin v. Astrue

Filing 21

MEMORANDUM OPINION AND ORDER. It is therefore ORDERED that the decision of the Commissioner be, and it is hereby, AFFIRMED. Signed by Judge Miguel A. Torres. (scf)

IN THE UNITED STATES DISTRICT COURT

FORTHEWESTERNDISTRICTOFTEXAS

9:58

EL PASO DIVISION

rur TEXAS

ENRIQUE MARROQUIN,

;

§

PUT Y

§

Plaintiff,

§
§

v.

NO. EP-12-CV-425-MAT

§
§

CAROLYN W. COLVIN,
ACTING COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,1

§
§
§
§

Defendant.

§

MEMORANDUM OPINION AND ORDER
Plaintiff appeals
This is a civil action seeking judicial review of an administrative decision.
("Commissioner")
from the decision of the Commissioner of the Social Security Administration
denying his claim for Disability Insurance Benefits ("DIB") under Title

Jurisdiction is predicated upon 42 U.S.C.

§

II of the Social Security Act.

405(g). Both parties having consented to trial on the

to this Court for trial and
merits before a United States Magistrate Judge, the case was transferred

entry of judgment pursuant to 28 U.S.C.

§

636(c) and Appendix C to the Local Court Rules of the

the Commissioner's decision is
Western District of Texas. For the reasons set forth below,
AFFIRMED.
I. PROCEDURAL HISTORY

he alleged disability
On August 31, 2007, Plaintiff filed an application for DIB in which

Security Administration
Carolyn W. Colvin became Acting Commissioner of the Social
Rules of Civil Procedure and the
on February 14, 2013. Pursuant to Rule 25(d)(1) of the Federal
Defendant herein.
last sentence of 42 U.S.C. § 405(g), she is substituted as the
1

beginning August 1, 2006 due to diabetes, insomnia, and problems with his shoulders, back, and
knees. (R. 205, 231).2 Plaintiff was 35 years old at the time of filing. (R. 205). He attended high
school through grade 12, but did not graduate. (R. 73). He later obtained his GED. Id. He has

previous work experience as a bus driver from 1991 to 2006. (R. 76, 237).

After his application was denied initially and upon reconsideration, Plaintiff requested a
hearing before an administrative lawjudge ("AU"). (R. 106-110, 116-118, 119-125). On October
15, 2009,

Plaintiff appeared for a hearing. (R. 62-105). For reasons not explained by the parties,

Plaintiff appeared for another hearing on May 11, 2011. (R. 32-59). On July 15, 2011, the AU
issued a written decision denying benefits on the ground that Plaintiff is able to perform work
available in significant numbers in the national economy, and therefore, is not disabled. (R. 13-23).

the
On August 23, 2012, the Appeals Council denied Plaintiff's request for review, thereby making

AU's decision the Commissioner's final administrative decision.

(R. 1-6).

II. IS SUES PRESENTED

Plaintiff presents two issues for review: (1) whether the AU's residual functional capacity
("RFC") assessment is supported by substantial evidence; and, (2) whether the AU committed

reversible error by failing to consider whether the claimant was capable of maintaining employment
for a significant period of time.
III. DISCUSSION

A. Standard of Review

This Court's review is limited to a determination of whether the Commissioner's final

Reference to the record of administrative proceedings is designated by (R. [page
number(s)]).
2

2

decision is supported by substantial evidence on the record as a whole and whether the
Commissioner applied the proper legal standards in evaluating the evidence. Myers v. Apfel, 238
F.3d 617, 619 (5th Cir. 2001) (citing Greenspan

v.

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

Substantial evidence is more than a scintilla, but less than a preponderance, and is such relevant

evidence as a reasonable mind might accept to support a conclusion. Ripley v. Chater, 67 F.3d 552,
555 (5th Cir. 1995). A finding

of "no substantial evidence" will be made only where there is a

"conspicuous absence of credible choices" or "no contrary medical evidence." Abshire

v.

Bowen,

848 F.2d 638, 640 (5th Cir. 1988).
In determining whether there is substantial evidence to support the findings of the

evidence
Commissioner, the court must carefully examine the entire record, but may not reweigh the
v. Sullivan,
or try the issues de novo. Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000); Haywood

"even if the
888 F.2d 1463, 1466 (5th Cir. 1989). The court may not substitute its own judgment
is less
evidence preponderates against the [Commissioner's] decision" because substantial evidence

than a preponderance. Harrell

v.

Bowen, 862 F.2d 471, 475 (5th Cir. 1988). Conflicts in the

evidence are for the Commissioner and not the courts to resolve. Speliman

v.

Shalala, 1 F.3d 357,

and her findings are
360 (5th Cir. 1993). If the Commissioner applied the proper legal standards

supported by substantial evidence, they are conclusive and must be affirmed. Id.
B. Evaluation Process and Burden of Proof

Disability is defined as the "inability to engage in substantial gainful activity by reason
medically determinable physical or mental impairment which.

.

.

has lasted or can be expected to

last for a continuous period of not less than 12 months." 42 U.S.C.

§

423(d)(1)(A). Disability

claims are evaluated according to a five-step sequential process: (1) whether the claimant
3

of any

is currently

engaged in substantial gainful activity; (2) whether the claimant has a severe medically determinable

physical or mental impairment or combination of impairments; (3) whether the claimant's
in
impairment or combination of impairments meets or equals the severity of an impairment listed
20 C.F.R. Part 404, Subpart P, Appendix

1;

(4) whether the impairment or combination of

whether the
impairments prevents the claimant from performing past relevant work; and, (5)
any other work. 20
impairment or combination of impairments prevents the claimant from doing
C.F.R.

§

in the process
404.1520. A finding that a claimant is disabled or not disabled at any point

is conclusive and terminates the analysis. Greenspan, 38 F.3d at 236.
analysis.
The claimant bears the burden of proof on the first four steps of the sequential
is met, the burden shifts to
Leggett v. Chater, 67 F.3d 558, 565 (5th Cir. 1995). Once this burden

employment available that the
the Commissioner to show that there is other substantial gainful
claimant is capable of performing. Anderson

v.

Sullivan, 887 F.2d 630, 632 (5th Cir. 1989). The

of vocational experts or by use
Commissioner may meet this burden by the use of opinion testimony
684 F.2d 1144, 1155
of administrative guidelines in the form of regulations. Rivers v. Schweiker,

alternative employment, the
(5th Cir. 1982). If the Commissioner adequately points to potential

perform the alternative work.
burden then shifts back to the claimant to prove that he is unable to
Id.
C. The

AU's Decision
that Plaintiff met the
In his written decision, the AU determined as a threshold matter

insured status requirements of the Social Security Act through December31,

2010. (R. 15). At step

from the
one, the AU found Plaintiff did not engage in substantial gainful activity

alleged onset date

At step two, the AU
of August 1, 2006 through his date last insured of December 31, 2010. Id.

ri

in
determined Plaintiff has severe impairments consisting of bipolar disorder, alcohol dependence

of
remission, obesity, and low back pain. The AU further determined Plaintiff's impairments
The AU
diabetes mellitus, sleep apnea, and history of knee surgery are non-severe. (R. 15-16).
further noted
noted Plaintiff's diabetes was controlled with medication and diet. (R. 15). He

when he
Plaintiff was not compliant with the use of his NCPAP machine for sleep apnea although
determined Plaintiff
used it, it provided a significant response. (R. 15-16). At step three, the AU
equals one of the listed
does not have an impairment or combination of impairments that meets or
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 16-17).
is able to perform
Before reaching step four, the AU assessed Plaintiff's RFC and found he

17-2 1). In making this RFC
sedentary work3, and is limited to simple one to two stepjob tasks. (R.

the intensity, persistence, and
assessment, the AU determined Plaintiff's allegations regarding
limiting effects of his symptoms were not entirely credible. (R. 18).

past relevant work as a
At step four, the AU found that Plaintiff was unable to perform his

Plaintiff's age, education, work
local bus driver. (R. 21). At step five, the AU found, considering
experience, and RFC, that there arejobs existing in significant numbers

in the national economy that

Plaintiff can perform, including final assembler, ink printer, and motor

polarizer. (R. 21-22). Thus,

the AU concluded at step five that Plaintiff is not disabled. (R. 22).

pounds at a time
Sedentary work is defined in the regulations as lifting no more than 10
tools. Although a
and small
and occasionally lifting or carrying articles like docket files, ledgers,
amount of walking and standing
sedentary job is defined as one which involves sitting, a certain
if walking and standing are
is often necessary in carrying out job duties. Jobs are sedentary
404.1567(a).
required occasionally and other sedentary criteria are met. 20 C.F.R. §

D. Analysis of Plaintiff's Claims
1.

RFC Assessment is Supported by Substantial Evidence

Plaintiff contends the AU's assessment of his RFZ is not supported by substantial evidence
because the AU failed to accommodate Plaintiff's limitations in sitting, standing, and walking, and
seeing which result from Plaintiff's impairments of diabetes, problems with his knees, shoulder, and
and,
back, and sleep apnea. In support, Plaintiff relies on: (1) his subjective testimony and reports;
(2) medical evidence of his diagnosed conditions. (ECF No. 19, Pl.'s Brief at 4-6).

RFC is defined as the most an individual can still do despite his limitations. 20 C.F.R.

§

claimant's
404.1545; Social Security Ruling ("SSR") 96-8p4. The responsibility to determine the
the AU must
RFC belongs to the AU. Ripley, 67 F.3d at 557. In making this determination,
and mental
consider all the record evidence and determine Plaintiff's abilities despite his physical
limitations. 20 C.F.R.

§

404.1545. The AU must consider the limiting effects of Plaintiff's

impairments, even those that are non-severe, and any related symptoms. See 20 C.F.R.

§§

404.1529,

AU' s discretion.
404.1545; SSR 96-8p. The relative weight to be given to the evidence is within the
See Chambliss v. Massanari, 269 F.3d 520, 523 n.1 (5th Cir. 2001) (citing Johnson

v.

Bowen, 864

the RFC that
F.2d 340, 347 (5th Cir. 1988)). The AU is not required to incorporate limitations in
he did not find to be supported in the record. See Morris

v.

Bowen, 864 F.2d 333, 336 (5th Cir.

1988).

As stated by the AU, the issue of credibility is an integral part of the decision-making
and reports
process. (R. 20). Plaintiff's argument is based in large part on his subjective complaints

Claims,
SSR 96-8p, Titles II and XVI: Assessing Residual Functional Capacity in Initial
1996 WL 374184 (July 2, 1996).

ofpain and limitations. Contrary to Plaintiffs contention, the AU considered Plaintiffs subjective
complaints, and found Plaintiff was not fully credible. (R. 18, 20-2 1). Indeed, the AU opined

Plaintiff engaged in exaggeration and material omission. (R. 20).
In reaching his determination that Plaintiff was less than credible, the AU noted the

following. Plaintiff testified on May 11, 2011 that side effects from his medication constitute one

of his two biggest problems. The treatment notes from Dr. Nour dated April 4, 2011, however,
indicate Plaintiff denied he was experiencing any medication side effects. (R. 20, 694). Plaintiff
also testified he hears voices, however, his treatment notes indicate exactly the opposite. Id.

Additionally, he testified he was committed to a mental health hospital by his wife, however, on
further questioning Plaintiff admitted his hospitalization was voluntary. (R. 20, 38-39, 40-41).
Finally, treatment notes dated February 22,2011 state Plaintiff "also has been trying to maintainjob
a
activities with construction work, but due to ... [his impairments]... he has not been able to hold

job." (R. 20, 651). The AU noted that neither Plaintiffs work history nor his testimony reflected
he was "doing
any such work. Additionally, one month earlier Plaintiff reported to Dr. Cromer that

argues
much better" and feeling better after treatments to his back. (R. 20, 653). Although Plaintiff
gym
he is unable to perform even sedentary work, Dr. Cromer recommended Plaintiff "get a

of
membership and be routine in terms of working out three times a week." (R. 653). Assessment
credibility is the province of the AU, and his credibility determination is entitled to great deference.
Greenspan, 38

F.3d at 237; Newton, 209 F.3d at 459. The Court declines to reweigh the subjective

This report was prepared by Dr. Barry Cromer of the El Paso Orthopaedic Surgery
Group upon Plaintiffs request for an evaluation of complaints of recurrent back pain and
told
episodes of radiating leg pain for purposes of obtaining disability benefits. Dr. Cromer
Plaintiff he did not do disability evaluations and referred Plaintiff to Dr. Mrochek. (R. 651).
7

evidence upon which Plaintiff relies.
In addition to his subjective testimony and reports which the AU did not find to be fully

which he
credible, Plaintiff relies primarily on a recitation of the numerous medical conditions with
has been diagnosed at various times, including morbid obesity, obstructive sleep apnea, arthralgias

of both knees due to degenerativejoint disease, lumbago with radiculopathy, spondylosis at Ti 2-LI,
central canal
disc protrusion at L3-L4 and L4-L5 with nerve root impingement and moderate

sleep disorder,
narrowing, sciatica, migraine headaches, clinical depression aggravated by
uncontrolled diabetes mellitus type 2, dyspnea upon exertion and intolerance

to physical activity due

to deconditioning and suspected pulmonary hypertension with right ventricular

visual

defect.6

strain, and refractive

As
(ECFN0. 19, pp. 5-6, R. 329, 376, 492, 500, 502, 522, 527,558, 564, 641-643).

determination is not on the
pointed out by the Commissioner, the proper focus of a disability
Heckler, 738 F.2d 641, 644
diagnoses, but on the resulting functional limitations. See Barajas v.
significant functional restrictions
(5th Cir. 1984) (mere diagnosis of a condition without resulting
is not disabling within the Act).

kneeling,
Plaintiff also relies on his difficulty performing tandem walking, squatting,
stated by the Commissioner,
hopping, and climbing at the consultative examination. As correctly
would require Plaintiff to perform
there is no indication that the sedentary jobs identified by the VE
the record
Although Plaintiff claims his limitations in seeing were not considered,
329). The diagnosis of
shows that on October 26, 2007, Plaintiff underwent an eye test. (R.
In a disability report
refractive visual defect was based on the eye test results without glasses.
reading the newspaper. (R.
dated September 10, 2007, however, he reported no difficulty with
not be corrected by prescription
245). There is no showing that Plaintiff's vision problems could
1988) (an individual who
eyeglasses. See Johnson v. Bowen, 894 F.2d 683, 685 n.4 (5th Cir.
20 C.F.R. § 404.1530; see
fails to follow prescribed treatment will not be found to be disabled);
controlled or controllable
also Epps v. Harris, 624 F.2d 1267, 1270 (5th Cir. 1980) (conditions
by treatment are not disabling).
6

any of these activities. Sedentary work involves sitting, but may also require occasional walking and

standing. 20 C.F.R. § 404.1567(a). At the consultative examination, Plaintiff was reported to have
unremarkable posture, normal gait, no sensory deficits, no significant motor deficits, symmetrical

deep tendon reflexes, intact coordination, and no abnormal muscle movements. (R. 328-329).

As for the effects of Plaintiff's diabetes, as noted by the AU, the record shows that his
with his
diabetes is uncontrolled when he is not following a diabetic diet and not compliant

diabetes is
medication. (R. 15, 392, 393, 396, 486, 517). Conversely, with proper treatment his

with [the]
controlled, and he "does not experience any problems as long as he remains compliant
proper treatment
treatment regimen." (R. 15, 555, 566-631). Conditions that can be controlled with
are not disabling. 20 C.F.R. § 404.1530;

Johnson,

894 F.2d at 685 n.4; Epps, 624 F.2d at 1270.

completed by Erik
The AU also discussed the medical assessment form regarding diabetes

little weight to this
Chaparro, a physician's assistant. (R. 19, 663-664). The AU properly gave
evidence regarding
checklist type of opinion as it was conclusory and was not supported by any

Additionally, the AU
either the treating relationship or the results of any clinical testing. (R. 19).
at the hearing that
noted that the assessment was completely inconsistent with Plaintiff's testimony

his diabetes is controlled with medication. (R. 19, 46-47).

the results
Finally, the AU did not ignore Plaintiff's back and leg problems. He discussed
26, 2007, and
of the consultative examination performed by Enrique Porras, M.D. on October

recognized the findings which included, inter alia, arthralgias of both knees

due to degenerative disc

the treatment records of
disease, lumbago, and spondylosis. (R. 19, 326-329). He also discussed

been doing quite well until
the El Paso Orthopaedic Surgery Group which noted Plaintiff had
recently when he suffered an acute exacerbation of his back and left leg pain.

(R. 20, 564, 634-653).

The AU noted that the increased pain apparently was caused by discontinuing the treatment

pain
regimen of physical therapy and steroid injections. (R. 20). The AU found Plaintiff's low back
to be severe, and he reduced Plaintiff's RFC to sedentary work. The AU did not ignore the evidence

did not
regarding any of Plaintiffs back and leg problems. Instead, he determined the evidence
support the degree of limitation alleged by Plaintiff.
In determining that Plaintiff retained the RFC for sedentary work limited to

simple one to two

to all of Plaintiffs
step job tasks, the AU thoroughly discussed the evidence as it related

evidence does not
impairments, both severe and non-severe. A review of the objective medical
See Anthony v. Sullivan,
support Plaintiff's contention that the AU improperly assessed his RFC.

by medical findings need
954 F.2d 289, 295 (5th Cir. 1992) (subjective complaints unsubstantiated

evidence cited by Plaintiff
not be credited over conflicting medical evidence). Simply stated, the
assessed by the AU.
does not support the need for further limitations in his RFC than those
Required
2. No Separate Finding Regarding Ability to Maintain Employment
to make a separate
Plaintiff contends the AU committed reversible legal error by failing
finding regarding his ability to maintain employment as required

by Singletary

v.

Bowen, 798 F.2d

not required in every case. Frank v.
818 (5th Cir. 1 986). Plaintiff concedes that such a finding is
such a finding is required
Barnhart, 326 F.3d 618, 619 (5th Cir. 2003). He argues, however, that
in his case because the medical evidence shows he experiences
to his severe impairment

intermittent periods of incapacity due

of bipolar disorder which causes him to experience intermittent mood

fluctuations.

support a finding that the
In Singletary, the Court held that substantial evidence did not
indicated that he was never
claimant "could maintain employment" because his "personal history
Id. at 822-23.
able to hold ajob for long periods of time" due to mental problems.
10

In support, Plaintiff relies on his testimony at the administrative hearing that he was

hospitalized in July 2010 for about a month for behavioral issues, uncontrollable anger, and
depression, and afterward he was seen on frequent visits which were eventually reduced to once
sad,
every three months. (R. 38-39). Plaintiff also relies on his various subjective reports of feeling

dealing
moody, impatient, angry, betrayed, tired, useless, physically broken, and having problems

with stress, pressure, criticism, and changes in routine. (R. 263, 265, 266, 267).

Plaintiff further relies on the observation of Dr. Porras that Plaintiff had a pervasive sense
(R. 327). A
of sadness, was emotionally labile, easily angered, and had frequent crying spells.

subjective report of
review of this cited page shows that Dr. Porras was summarizing Plaintiff's
about his bariatric
symptoms. Id. Dr. Porras noted Plaintiff became emotional when talking

surgery.

a score that indicates
Id. He also noted the Zung Self-Rating Depression questionnaire revealed
in all spheres, with
severe depression. Id. Dr. Porras further noted Plaintiff was alert and oriented

would indicate Plaintiff's
appropriate affect. (R. 329). There is nothing in Dr. Porras' report that
would prevent him from
mental symptoms wax and wane with a frequency and severity that

jobs at the sedentary level.
performing maintaining employment performing simple one to two step
Guido Barrientos,
Plaintiff also relies on the report of the consultative mental examiner, Dr.

Plaintiff was not receiving
dated December 6, 2007. (R. 334-337). At the time of the examination,
(R. 335). In fact, he reported
mental health treatment and was not taking psychiatric medication.

professional. Id. Although Dr.
he had never been evaluated or treated by any mental health care

Plaintiff was well-oriented,
Barrientos stated Plaintiff had poor judgment and insight, he also found
Plaintiff was relaxed and
and able to focus on questions and provide rational answers. (R. 336).
his mood was low, he did not
quiet, and did not appear to be under stress or agitated. Id. Although

11

appear to be clinically depressed. Id. Although his cognitive functions seemed dull, he had no

memory problems. Id.
Dr. Barrientos observed Plaintiff's educational level was low, and he appeared to be of low

average intelligence, with poor understanding of his medical problems. Id. While Plaintiff points
the report
out that Dr. Barrientos recommended he receive psychiatric care and psychotherapy,
a job within
clearly indicates that with treatment and vocational rehabilitation, Plaintiff could find
can not maintain
his limitations. Id. The report contains no information that indicates Plaintiff

employment.
GAP of 458
Plaintiff relies on the October 2009 diagnosis of major depressive disorder and

Muniz is a licensed
by Dr. Muniz. (R. 425). As pointed out by the Commissioner, however,
that after the October
professional counselor, not a medical doctor. (R. 418). The record shows

April2010. (R. 478).
2009 evaluation, Plaintiff did not return for his follow up appointments until
was even, his affect was
By early June 2010, shortly after resuming therapy, Plaintiff's mood

congruent, his motor activity was good, his thought process was good, his

thought content was good,

Plaintiff stated he had
his attention was appropriate, and his appearance was appropriate. (R. 481).

clinicians and
The Global Assessment of Functioning Scale is used by mental health
and occupational
physicians to rate an individual's overall level of psychological, social,
DIAGNOSTIC AND
functioning on a scale of 0 to 100. American Psychiatric Association,
2000). A GAF of 41-50 indicates
STATISTICAL MANUAL OF MENTAL DISORDERS 32-34 (4th ed.
or school functioning
"[s]erious symptoms ... OR any serious impairment in social, occupational,
8

Id. at 34.
See Hill v.
GAF scores are not entitled to significant weight as an indicator of disability.
GAF scale, while
Astrue, 2009 WL 2901530, at *7(s.D. Tex. Sept. 1, 2009) (noting the
ability or inability to work).
potentially relevant, does not directly correlate to an individual's
for use in the disability
The Commissioner has specifically declined to endorse the GAF scale
Disorders and Traumatic Brain
programs. See Revised Medical Criteria for Evaluating Mental
2000).
Injury, 65 Fed. Reg. 50,746, 50,764-65, 2000 WL 1173632 (Aug.21,
12

better control of his moods, and felt hopeful about the future. Id.

Plaintiff also cites to treatment records from his psychiatric hospitalization at University
Behavioral Health ("UBH") from May 6, 2010 to May 18, 2010. (R. 460-476). As noted by the

AU, the notes show that upon admission to UBH, he was placed on the alcohol dependence
withdrawal protocol as he admitted to regularly drinking two bottles of wine three times a week and
reported hallucinations and sensations of spiders crawling on his body. (R. 20, 460-46 1). At the
time of his discharge from UBH, Plaintiff was diagnosed by Dr. Nour with schizoaffective disorder

(bipolar type) and alcohol dependence. His GAF was reported to be 60. (R. 460). Plaintiff further
relies on Dr. Nour's April 2011 assessment of schizoaffective disorder (bipolar type), alcohol
dependence in remission, and a OAF score of 6065.b0 (R. 694). As noted by the Commissioner, the

treatment records indicate Plaintiff improved with treatment and medication compliance. (R. 471474). The mental health treatment records fail to support Plaintiff's claim that he is unable to

maintain employment.
The Court notes the AU properly gave little weight to Dr. Nour's medical source statement

dated March 5,2011 that showed Plaintiff has marked limitation in a wide variety of functional areas
and would suffer a high rate of absenteeism. The AU discounted Dr. Nour's opinion due to a

combination of factors, including inconsistency with Dr. Nour' s own treatment notes from the

A GAF of 51-60 indicates "[m]oderate symptoms ... OR moderate difficulty in social,
occupational, or school functioning ... ." American Psychiatric Association, DIAGNOSTIC AND
STATISTICAL MANuAL OF MENTAL DISORDERS 34 (4th ed. 2000).

A GAF of 61-70 indicates "[s]ome mild symptoms ... OR some difficulty in social
occupational, or school functioning ..., but generally functioning pretty well. Has some
meaningful interpersonal relationships. American Psychiatric Association, DIAGNOSTIC AND
STATISTICAL MANUAL OF MENTAL DISORDERS 34 (4th ed. 2000).
10

13

following month, as well as unresolved inconsistencies in the nature and frequency of the treating
relationship. (R. 18, 656-660). When good cause is shown, an AU may give less weight, little
weight, or even no weight to any physician's opinion. Greenspan, 38 F.3d at 237 (citing Scott v.

Heckler, 770 F.2d 482, 485 (5th Cir. 1985)).
Finally, Plaintiff relies on the vocational expert's affirmative response to the

AU's

hypothetical question of whether a person who is unable to maintain concentration, persistence and
pace for up to two hours at a time and is unable to complete a normal 40-hour work week is typically

unsuitable for competitive employment. (R. 57). As the AU did not find Plaintiff was unable to

maintain concentration, persistence and pace for up to two hours at a time and/or unable to complete
a 40-hour work week, the VE's testimony on this point is irrelevant. Owens

v.

Heckler, 770 F.2d

1276, 1282(5th Cir. 1985) (When hypothetical testimony by the VE is unsupported by the evidence,

the AU may properly disregard that testimony).
A reading of the opinion shows the AU considered both Plaintiffs subjective complaints

regarding his mental status and his psychiatric admission in reaching his conclusion that Plaintiffs
mood disorder has shown dramatic improvement over time. Based on his evaluation of the record
as a whole, the AU opined that the most serious of Plaintiff s symptoms were temporary in nature

and were largely attributable to substance abuse, now in remission. There is no showing that the AU

committed legal error by failing to make a separate finding regarding Plaintiffs ability to maintain
employment. As substantial evidence supports the

14

AU's decision, it must be affirmed.

CONCLUSION
It is therefore ORDERED that the decision of the Commissioner be, and it is hereby,

AFFIRMED.
SIGNED and ENTERED this

(

day of March, 2016.

TORRES
MIGUEL
UNITED STATES MAGISTRATE JUDGE

15