Fernandez v. Colvin

Filing 24

MEMORANDUM OPINION AND ORDER. The Court hereby ORDERS that the decision of the Commissioner be AFFIRMED consistent with this opinion. Signed by Judge Leon Schydlower. (scf)

I'.,

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION

EDDIE FERNANDEZ,
Plaintiff,

'

I

-4

§
§
§

v.

-

c-n

NO. EP-14JCV-0154-LS

§

CAROLYN W. COLVIN,
Acting Commissioner of Social Security
Administration,
Defendant.

§
§
§
§

MEMORANDUM OPINION AND ORDER
This is a civil action seeking judicial review of an administrative decision. Jurisdiction is

predicated upon 42 U.S.C. § 405(g). Both parties having consented to trial before a United States
Magistrate Judge, the case was transferred to this court pursuant to 28

u.s.c.

§ 636(c) and

Appendix C to the Local Court Rules for the Western District of Texas, to conduct any and all
further proceedings in the cause, including trial and entry ofjudgment. [ECF No. 10]

Plaintiff appeals from the decision of the Commissioner of the Social Security
Administration (Commissioner) denying his application for supplemental security income ("SSI")
under Title XVI of the Social Security Act.

See

42 U.S.C. § 1381

et seq.

For the reasons set forth

below, this Court orders that the Commissioner's decision be AFFIRMED.

I. BACKGROUND

Plaintiff was born in August 1987, completed the

9th

grade, and was enrolled in special

education classes in El Paso, Texas. (R:26, 30, 137)' He is able to communicate in English though

his primary language is Spanish (R:30, 136, 270) He has worked with his father delivering ice to
retailers. (R:29, 42) Plaintiff alleges disability beginning on March 1, 2009, due to his mental

Reference to the Administrative Record, contained in Docket Entry Number 16, is designated by an
"R" followed by the page number(s).
1

conditions and learning disabilities. (R: 119, 137)

II. ISSUES
Plaintiff presents the following issues for review:
1. Whether the final decision of the Commissioner denying benefits is supported by
substantial evidence; and

2. Whether the Commissioner applied an incorrect legal standard in determining that

Plaintiff was not disabled.
Plaintiff contends that the Administrative Law Judge's residual functional capacity
("RFC") determination is not supported by substantial evidence because she failed to properly

consider all the limitations resulting from Plaintiffs mental impairments, such as his difficulties

with attending and completing tasks, his difficulties with acquiring and using information, and his
need for close supervision. Plaintiff contends that the case should be reversed, or in the alternative,

remanded for further administrative proceedings.

III. PROCEDURAL HISTORY
In October 2010, Plaintiff filed an application for SSI benefits with an alleged onset date of

March 1, 2009. (R:2 1, 119) His applications were denied initially and upon reconsideration. (R:2 1,
56, 66) Upon Plaintiffs written request for a hearing, an administrative hearing was held on

September 20, 2012. (R:21, 39-53, 71) Administrative Law Judge ("AU") Ann Farris issued a
decision on October 30, 2012, finding Plaintiff not disabled, and denying benefits. (R:21-32) The

Appeals Council denied Plaintiffs request for review on January 30, 2014. (R:4-11)

Plaintiff filed the instant cause on April 25, 2014. [ECF No.

1]

Upon the granting of

Plaintiff's motion to proceed in forma pauperis, his complaint was filed. [ECF Nos. 4, 5]
Defendant filed an answer and a transcript of the administrative proceedings on July 1,2014. [ECF

Nos. 15, 16] Plaintiff filed a brief in support of his claims on October 30, 2014. [ECF No. 21] On

November 25, 2014, Defendant filed a brief in support of the Commissioner's decision denying
benefits. [ECF No. 22] The case was transferred to United States Magistrate Judge Leon
Schydlower on December 8, 2015. [ECF No. 23]

IV. DISCUSSION
A. STANDARD OF REVIEW

The court's review of the Commissioner's decision 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. Perez
2005); Masterson

v.

Barnhart, 309 F.3d 267, 272

(5th1

v.

Barnhart, 415 F.3d 457, 461

(5th

Cir.

Cir. 2002). Substantial evidence "is more

than a mere scintilla, and less than a preponderance." Masterson, 309 F.3d at 272. The

Commissioner's findings will be upheld if supported by substantial evidence. Id.
In applying the substantial evidence standard, the court may not reweigh the evidence, try

the issues de novo, or substitute its own judgment for the Commissioner's, even if it believes the
evidence weighs against the Commissioner's decision. Id. Conflicts in the evidence are for the
Commissioner and not for the courts to resolve. Perez, 415 F.3d at 461.
B. EVALUATION PROCESS
SSI benefits are governed by Title XVI, 42 U.S.C.

§

1381

etseq., of the Social Security Act

as well as numerous regulatory provisions. See 20 C.F.R. Pt. 416. A claimant bears the burden of

proving disability, which is defined as any medically determinable physical or mental impairment

lasting at least 12 months that prevents the claimant from engaging in substantial gainful activity.
See 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a); Masterson, 309 F.3d at 271. The AU

3

evaluates disability claims according to a sequential five-step process: 1) whether the claimant is
currently engaged in substantial gainful activity; 2) whether the claimant has a severe medically

determinable physical or mental impairment; 3) whether the claimant's impairment meets or
equals the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; 4)

whether the impairment prevents the claimant from performing his past relevant work; and 5)
whether the impairment prevents the claimant from doing any other work. 20 C.F.R. § 4 16.920.
The claimant bears the burden of proof at the first four steps of the analysis. Leggett

v.

Chater, 67 F.3d 558, 564 (5th Cir. 1995). If the claimant can perform his past relevant work, he is
not disabled. 20 C.F.R. § 4 16.920. However, if the claimant has shown he cannot perform his
previous work, the burden shifts to the Commissioner to show that there is other work available
that the claimant can perform. Crowley

v.

Apfel, 197 F.3d 194, 198

(5th

Cir. 1999). If the

Commissioner establishes other gainful employment, the burden shifts back to the claimant to
prove he is unable to perform the alternate work. Id.

The five-step inquiry terminates if the Commissioner finds at any step that the claimant is
or is not disabled. Leggett, 67 F.3d at 564. "The Commissioner's decision is granted great

deference and will not be disturbed unless the reviewing court cannot find substantial evidence in
the record to support the Commissioner's decision or finds that the Commissioner made an error of

law." Id.
The mere presence of an impairment is not disabling per Se. See Hames

v.

Heckler, 707

F.2d 162, 165 (5th Cir. 1983). Rather, it is Plaintiffs burden to establish disability and to provide or
identify medical and other evidence of his impairments and how they affect his ability to work. See
20 C.F.R. § 416.912(c). His own subjective complaints, without objective medical evidence of

ru

record, are insufficient to establish disability.

See

20 C.F.R. § 416.908, 416.928, 416.929.

C. THE AU'S DECISION
In the present case, the AU found that Plaintiff had not engaged in substantial gainful

activity since October 20, 2010, the application date. (R:23) She determined that Plaintiff had

severe impairments consisting of borderline intellectual functioning, personality traits, and alcohol
abuse. (R:23) However, she found that none of Plaintiffs impairments met or medically equaled

the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix

1.

(R:24)

In assessing whether the severity of Plaintiffs mental impairments met or medically

equaled the listing of impairments, the AU considered the category of impairments for organic
mental disorders in Section 12.02.
C.F.R.

§

See

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

1

§

12.02;

see also

20

416.920a(c)-(d). Pursuant to Section 12.02, the AU rated the degree of Plaintiffs

limitations in four broad functional areas: 1) activities of daily living; 2) social functioning; 3)
concentration, persistence, or pace; and 4) episodes of decompensation. She found that Plaintiff
had no restrictions in daily living activities and social functioning, mild difficulties with

concentration, persistence, or pace, and no episodes of decompensation. (R:24-25) After

comparing the medical records and the degree of functional limitations to the criteria of Section
12.02, the AU concluded that Plaintiffs degree of functional limitation did not meet the requisite

level of severity of an organic mental disorder for purposes of establishing disability. (R:24-25)
See

20 C.F.R.

§

416.920(a),(d),(e), 4l6.920a(b)-(d).

The AU next determined that Plaintiff retained the functional capacity to perform a full

range of work but with the following nonexertional limitations: performing only simple, routine

tasks with reasoning level one; reading a simple list but not detailed or complex instructions; and

5

filling out simple logs, but not writing reports. (R:25)

At the next step of the disability analysis, the AU concluded that Plaintiff had no past
relevant work. (R:30) Then, considering Plaintiff's age, education, work experience, and RFC in
conjunction with the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2,
and relying on vocational expert ("VE") testimony, the AU determined that there were jobs that

existed in significant numbers in the national economy that Plaintiff could perform. (R:30-31)
Consequently, the AU concluded that Plaintiff was not disabled from his alleged onset date

through the date of the AU's decision. (R:3 1-32)
D. THE

AU'S RESIDUAL FUNCTIONAL CAPACITY DETERMINATION IS

SUPPORTED BY SUBSTANTIAL EVIDENCE
Residual functional capacity is the most an individual can still do despite his limitations. 20
C.F.R. § 4 16.945. The responsibility to determine the Plaintiffs RFC belongs to the AU. Ripley v.

Chater, 67 F.3d 552, 557 (5th Cir. 1995). The AU must determine a claimant's abilities despite his
physical and mental limitations based on the relevant evidence in the record. Perez, 415 F.3d at
46 1-62. The AU must consider the limiting effects of an individual's impairments, even those that
are non-severe, and any related symptoms. See 20 C.F.R. § 416.929, 416.945. The relative weight

to be given the evidence is within the AU's discretion. Chambliss

n.l

(5th

v.

Massanari, 269 F.3d 520, 523

Cir. 2001).
1.

Medical Evidence

The medical evidence of record demonstrates the following:
In 2003, Plaintiff was examined by Dr. Lawrence Burciaga for a psychological evaluation
for the El Paso Independent School District. (R:222-26, 247, 269) Dr. Burciaga diagnosed him

with oppositional defiant disorder, unspecified learning disability disorder, communication

disorder, and borderline intellectual functioning. He assessed a Global Assessment of Functioning
(GAF) rating of 60.2
On May 18, 2007, Plaintiff underwent a psychiatric examination by Dr. Arthur Ramirez.
(R:253-55)3

Plaintiff reported to Dr. Ramirez that during the summer he worked for his father

delivering ice to various stores, and that during the winter he worked for his sister, who is an

insurance agent, doing custodial work. Dr. Ramirez found Plaintiff's concentration to be

moderately diminished, his recent memory to be fair, and his remote memories poor. Plaintiff
could not perform simple arithmetic calculations. His insight and judgment were poor. Dr.

Ramirez diagnosed him with moderately severe mental retardation. He concluded that Plaintiff

had diminished mental capacity and would need to interact in simple and concrete terms.

Plaintiff underwent a consultative mental examination on February 19, 2008, by Dr. Peter
Fernandez. (R:245-48) Plaintiff denied a history of psychiatric or substance abuse treatment, and
denied taking any medications. He was independent in his dressing, bathing, feeding, shopping,
and washing dishes/clothing. He occasionally drove a vehicle though he never obtained a driver's
license. During the examination, Plaintiff had difficulty reading in English, but performed better in

A GAF rating of 51-60 indicates moderate symptoms or moderate difficulty in social, occupational,
or school functioning. A GAF rating of 61-70 indicates some mild symptoms or some difficulty in social,
occupational, or school functioning, but generally functioning pretty well. See Am. Psychiatric Ass'n,
(4th
ed. Text Revision 2000)
DIAGNOSTIC and STATISTICAL MANUAL of MENTAL DISORDERS 34
it is noted that in the updated version of the DSM, the American Psychiatric
("DSM-IV-TR"). However,
Association no longer recommends the use of the GAF scale as a diagnostic tool for assessing a patient's
functioning due to "its conceptual lack of clarity. . . and questionable psychometrics in routine practice."
(5th
ed.
See Am. Psychiatric Ass'n, DIAGNOSTIC and STATISTICAL MANUAL of MENTAL DISORDERS 16
2013) ("DSM-V").
2

The evaluation was performed in order to determine Plaintiff's competency for trial in criminal
proceedings pending against Plaintiff at that time. Dr. Ramirez concluded that Plaintiff was marginally
competent to stand trial. (R:255) Plaintiff was sentenced to a term of probation, which has since been
discharged. See United States v. Eddie Fernandez, EP-07-CR-820-KC (W.D. Tex. Jun. 10, 2009) (order for
discharge from supervision).
7

Spanish. Dr. Fernandez noted that the examination was conducted in Spanish which was Plaintiff's

preference. Plaintiff required occasional repetition of questions due to mild weakness in
abstract-reasoning. He was able to perform simple written arithmetic problems.
Dr. Fernandez found that Plaintiff demonstrated adequate mental control, written and

mental arithmetic, visual recall, verbal repetition, written expression, constructional

praxis,4

and

practical judgment. However, he determined that Plaintiff demonstrated weak spelling, weak

verbal learning, mildly weak verbal recall, and mildly weak abstract reasoning. Plaintiff also
demonstrated weak verbal repetition and written expression in English. Despite his mother stating

that he often was noncompliant or angry, Plaintiff did not exhibit any such behavior during the
interview and was cooperative and happy. Dr. Fernandez diagnosed him with phonological

(articulation) disorder, an unspecified cognitive disorder, and nonconforming personality traits,
with a history of adult antisocial behavior and a history of borderline intellectual functioning. He
concluded that Plaintiff was moderately impaired in social functioning and moderately to seriously
impaired in vocational functioning.
On March 23, 2010, Plaintiff underwent a psychiatric evaluation by Dr. David Briones.5

(R:249-52) Plaintiff denied any psychiatric symptoms, or any suicidal or homicidal ideations, and
was not on any medications. His concentration was poor. He had trouble with immediate recall and
had very poor remote recall. His intellectual functioning was estimated to be below average, with

While praxia means the performance of an action, constructional apraxia refers to an inability to
copy simple drawings or to reproduce patterns created with building blocks. Dorland's Illustrated Medical
Dictionary, 118, 1448 (29thed. 2000).
Dr. Briones generated a summary report of the psychiatric evaluation for the criminal proceedings
pending against Plaintiff at that time. The criminal charges were subsequently dismissed. See United States
v. Eddie Fernandez, EP-09-CR-3498-FM (W.D. Tex. May 27, 2010) (order of dismissal signed by district
court).
8

fair judgment and insight. Dr. Briones assessed him with mild to moderate mental retardation,
alcohol substance abuse, and an unspecified cognitive disorder. He concluded that Plaintiff did not

have a fully rational or factual understanding of the legal proceedings against him, and did not
have a sufficient ability to consult with his attorney and assist in his own defense with a reasonable
degree of rational understanding. Dr. Briones recommended that Plaintiff would benefit from
having a legal guardian.
A consultative psychological examination was conducted on February 8, 2011, by Dr.

James Schutte. (R:268-71) Plaintiff was evaluated for disability based on alleged learning

disabilities and mental illness. Plaintiff reported that he did not have any trouble getting along with
others at work. He also denied having any trouble concentrating or remembering tasks at work. He

denied having any feelings of depression or anxiety, denied any substance abuse, and denied any

memory or concentration problems. He was not taking any medications. Upon examination,

Plaintiffs cognitive functions appeared somewhat limited, but he was alert and responsive to his
surroundings. His speech was clear and comprehensible with no apparent deficits. His long-term
memory did not seem grossly impaired. His attention and concentration appeared adequate.
Intelligence test results indicated borderline intellectual functioning with mild to severe

deficits in English reading, spelling, and math skills. However, because Plaintiff was

Spanish-language dominant, Dr. Schutte determined that there did not appear to be a learning
disorder. With regard to adaptive behavior, Plaintiff reported being able to care for himself with
some limitation, being able to get along with others, and feeling able to work. He could follow

simple storylines, follow simple instructions, and carry out simple tasks. Dr. Schutte assessed him

with borderline intellectual functioning with a GAF score of 55. He determined that Plaintiff had

some reported limitations in home living and functional academics, that he could understand the

meaning of filing for benefits, and could manage benefit payments. Dr. Schutte concluded that

Plaintiff's ability to reason seemed moderately impaired and that his ability to make occupational,
personal, and social adjustments seemed moderately impaired due to his borderline intellectual

functioning.
On February 23, 2011, a state agency physician, Matthew Snapp, Ph.D., completed a

Psychiatric Review Technique form (R:276-88) and a Mental Residual Functional Capacity form.
(R:290-92) Dr. Snapp determined that Plaintiff had mild limitations in the areas of daily living

activities and in maintaining social functioning, and moderate limitations in maintaining

concentration, persistence, or pace. He found no episodes of decompensation. Dr. Snapp further
assessed Plaintiff as not significantly limited in the ability to remember locations and work-like

procedures, to understand and remember short and simple instructions, and to carry out short and
simple instructions. He found Plaintiff not significantly limited in the ability to sustain an ordinary

routine without special supervision, to work in coordination with others, and to make simple
work-related decisions. He further found Plaintiff moderately limited in the ability to maintain

attention and concentration for extended periods, and to respond appropriately to changes in the
work setting. Dr. Snapp's assessments were affirmed by state agency physician Susan Posey on
April 19, 2011. (R:294, 296)

On September 18, 2012, Dr. Jaime Arbona completed a psychiatric evaluation (R:3 16-19)
and Medical Source Statement. (R:3 14-15) Dr. Arbona considered reports from Plaintiff's mother

that Plaintiff had exhibited outbursts of anger when taking instructions from his father, or out of
frustration when playing baseball, or when other students teased him in high school. Upon

10

evaluation, the doctor found Plaintiff's long and short-term memories to be fair and his immediate
recall to be poor. He found Plaintiff's process of thinking to be logical but affected by his level of

intellectual functioning. Plaintiff exhibited difficulty with reading and reading comprehension.

Judgment and insight were poor based on clinical history. Dr. Arbona diagnosed Plaintiff with
mild mental retardation. He recommended that Plaintiff's mother obtain assistance to help Plaintiff

learn social and basic living skills. In his Medical Source Statement, Dr. Arbona assessed Plaintiff
with marked limitations in the ability to understand, remember, and carry out simple instructions.
Due to Plaintiff's reported anger outbursts, Dr. Arbona further concluded that Plaintiff was
markedly limited in his ability to interact appropriately with co-workers, supervisors, and the
public.
2. Administrative Hearing Testimony

At the administrative hearing on September 20, 2012, Plaintiff testified that he stopped
working because he was fired for forgetting what he was told to do. (R:44) He further stated that he
always went with a co-worker on the deliveries, and that they had a list of locations for the
deliveries. (R:43) When asked what prevented him from working now, he replied that he did not
know. (R:43) Plaintiff stated that he still worked when there were routes to be done. (R:45-46) He

stated that he would be able to do the route by himself as long as there was someone else driving.
(R:46)

Plaintiff testified that he lived with his parents, and was able to drive "more or less" but did
not have a license. (R:44) He related that he did not go to counseling or take medications, and did
not use drugs or alcohol. (R:43-44) When asked what he did on a typical day after work, he replied

that he played with his nephews, played in baseball games on Sundays, and played video games for

11

about two hours. (R:45-47) When asked if he helped around the house, Plaintiff testified that he
took out the trash, swept, mopped, and cleaned the bathrooms. (R:47) Plaintiff testified that he
10th
grade because he got into fights with the other students that
stopped attending school in the

made fun of him. (R:48) However, he stated that he had no problems getting along with

co-workers. (R:48) He testified that he had trouble concentrating after five minutes and had trouble
in school with reading, writing, and arithmetic. (R:49) He further related that he has gone to the

corner store by himself "every now and then," but would get confused or forget what he was

supposed to buy. (R:47-48)
A VE testified at the hearing that Plaintiff did not have any past relevant work. (R:51) The
AU asked the VE whether work existed for an individual with

Plaintiffs age, education, and RFC.

(R:51) The VE identified three possible occupations: 1) scaling machine operator; 2) bakery

worker, conveyor line; and 3) final assembler. (R:51-52) See U.S. Dep't of Labor, Dictionary of

Occupational Titles ("DOT") § 521.685-386 (Scaling Machine Operator, light, unskilled, SVP 2),
524.687-022 (Bakery Worker, Conveyor Line, light, unskilled, SVP 2), 713.687-018 (Final
(4th
Ed., Rev. 1991).
Assembler, sedentary, unskilled, SVP 2)

Plaintiffs counsel asked the VE whether the hypothetical individual would be able to
maintain such employment if off task more than 20 percent of the day. (R:52) The VE testified that
such employment would not be available. (R:52) Counsel also asked whether the individual would
be able to maintain such employment if he had to be closely supervised and have his work checked
8

times per day. (R:52) The VE replied that such a scenario almost rose to the level of special

accommodations and thus such employment was not available. (R:52)

12

3. The AU's Consideration of Plaintiff's Mental Impairments

Plaintiff contends that the AU failed to consider all of the limiting effects of his mental
impairments in determining his RFC. He alleges that his borderline intellectual functioning,
mental retardation, and learning disability cause limitations in areas of attending and completing
tasks, acquiring and using information, working without close supervision, and following
instructions. He further alleges that his mental impairments also cause limitations in concentration
and memory. Based upon the VE testimony, Plaintiff claims that he would not be able to maintain

employment. Thus, he argues, the AU failed to meet her burden at step 5 of the analysis by relying
upon a faulty RFC determination and failing to show that work existed that Plaintiff could
perform.

Defendant argues that the AU' s RFC determination is supported by the medical evidence
in the record. Defendant further asserts that in making her decision the AU evaluated Plaintiffs
credibility and examined any inconsistencies in the record.

Review of the record reveals that the AU properly considered the relevant evidence and
found that Plaintiff was not as limited as alleged. The AU evaluated the medical opinions from the

examining doctors and from the state agency physicians and determined that Plaintiff was limited
to work that required remembering, understanding, and carrying out simple instructions with

reasoning level one. The AU also stated that Plaintiffs RFC assessment reflected the degree of

limitation she found in the four broad areas of the mental function analysis. (R:24) See 20 C.F.R.

§

416.920a(c)(3).
The medical evidence of record supports the

AU's RFC findings. For example,

Dr.

Schutte diagnosed Plaintiff with borderline intellectual functioning and found that his attention

13

and concentration were in the borderline range, while his reasoning and ability to make

adjustments were only moderately impaired. Despite Plaintiff's difficulties reading and writing,
Dr. Schutte opined that he could follow simple storylines, follow simple instructions, and carry out

simple tasks. Dr. Schutte's findings provide substantial evidence for the

AU's RFC

determination.
The opinion from Dr. Fernandez provides further support for the AU's RFC assessment.
Dr. Fernandez found Plaintiff moderately impaired in social functioning and moderately to

severely impaired in vocational functioning. He noted that during the examination, Plaintiff was
cooperative and did not exhibit any signs of non-compliance or anger. Further, although Dr.

Fernandez diagnosed Plaintiff with phonological and unspecified cognitive disorders, he found
that Plaintiff demonstrated adequate mental control, written and mental arithmetic, visual recall,
verbal repetition, written expression, constructional praxis, and practical judgment. The functional

limitations found by Dr. Fernandez are consistent with the

AU's RFC findings.

In addition, the psychiatric examinations of Plaintiff done in connection with his legal

proceedings are not inconsistent with the

AU's decision.

Dr. Ramirez found that Plaintiff was

restricted to interacting in simple and concrete terms. Dr. Briones determined that Plaintiff's
intellectual functioning was below average, but that he had fair judgment and insight. At that time,
Dr. Briones concluded that Plaintiff did not have a fully rational or factual understanding of the

legal proceedings against him and was not sufficiently able to consult with his attorney to assist in
his defense. However, by the time of the examination by Dr. Schutte, Plaintiff was able to

communicate effectively and was only moderately impaired in his ability to make personal, social,
and occupational adjustments.

14

The AU considered the opinions of the state agency medical consultants and attributed

great weight to them. State agency medical and psychological consultants are highly qualified
physicians who are also experts in Social Security disability evaluation.
41 6.927(e)(2)(i). Dr. Snapp determined that

See

20 C.F.R.

§

Plaintiff had mild limitations in the areas of daily

living activities and social functioning and moderate limitations in concentration, persistence, or
pace with no episodes of decompensation. He concluded that Plaintiff could understand,

remember, and carry out simple instructions, make simple decisions, attend and concentrate for
extended periods, interact adequately with co-workers and supervisors, and respond appropriately
to changes in the work setting. His conclusions were affirmed by state agency physician Dr. Posey,

and further support the

AU's findings.

With regard to the opinion of Dr. Arbona, the AU found it conclusory, based primarily

upon other evaluations and on interviews with the Plaintiff and his mother, and sought in an
attempt to obtain a formal diagnosis of Plaintiff. Because the AU found little explanation or
objective findings to support Dr. Arbona's opinion, and found it inconsistent with other record

evidence, the AU attributed no weight to the opinion. As the factfinder, the AU has the
responsibility of weighing the evidence and may determine which medical opinions are most
supported by the record.

See Muse v.

Sullivan, 925 F.2d 785, 790 (5th Cir. 1991).

In addition to reviewing the medical evidence, the AU examined Plaintiff's testimony and
alleged limitations and found them not fully credible. She noted that Plaintiff worked even with his

alleged impairments. (R:29) Also, although Plaintiff testified that he became confused and
forgetful when shopping or at work, he reported to the physicians having no difficulties shopping

alone or remembering tasks at work. (R:45, 47-49, 246, 268, 270) The AU also noted that Plaintiff

15

had not sought treatment for his impairments, and that the record was devoid of medical records

from any treating provider. (R:29) Further, Plaintiff testified that he did not take any medication or
go to counseling. (R:43-44)

Thus, review of the record demonstrates that substantial evidence supports the

AU' s RFC

finding. By limiting Plaintiff to simple, routine tasks with reasoning level one, the AU

incorporated those mental limitations supported by substantial evidence, including problems with
concentration, attention, memory, and intellectual functioning.

See

Kight

v.

Colvin, No.

3:12-CV-4920-BF, 2014 WL 1281049 at *3 (N.D. Tex. Mar. 31, 2014) (AU's RFC determination
limiting plaintiff to jobs with reasoning level one or two reasonably incorporated mental functional
limitations, including moderate deficiencies in concentration, persistence, or pace, resulting from

plaintiff's borderline intellectual functioning and other severe mental impairments).
Further, the

AU's

step five determination that other work was available is properly

supported with substantial evidence. At the hearing, the AU presented a hypothetical question to
the VE incorporating those limitations recognized by the AU in her RFC findings and asking

whether jobs existed that could be performed by an individual with those limitations. In response,
the VE identified three job descriptions that could be performed. All three jobs included a

reasoning level of one, requiring that the individual carry out simple instructions. Therefore, they
were consistent with and not in excess of the

AU's RFC finding. Consequently, the testimony

from the VE regarding other available work provides substantial evidence in support of the

AU's

finding. Moreover, Plaintiff has not shown, through objective evidence or otherwise, any

functional limitations resulting from his mental impairments beyond those assessed in the
RFC determination. Consequently, Plaintiff's argument is unavailing.

16

AU' s

V. CONCLUSION

Accordingly, based upon a review of the evidence, the Court finds that the AU's RFC
determination comports with relevant legal standards and is supported by substantial evidence.
Therefore, Plaintiff's assertions of error are without merit. Based on the foregoing, the Court

hereby ORDERS that the decision of the Commissioner be AFFIRMED consistent with this
opinion.

SIGNED and ENTERED on May J

,

2016.

LEON SCHYDLOWER
UNITED STATED MAGISTRATE JUDGE

17