Laserre v. Colvin

Filing 24

MEMORANDUM OPINION AND ORDER. Based on the foregoing, the Court hereby ORDERS that the decision of the Commissioner be AFFIRMED consistent with this opinion. Signed by Judge Robert F. Castaneda. (dc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
ROBERT LASERRE,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security
Administration,
Defendant.

'
'
'
'
'
'
'
'

NO. 3:16-CV-77-RFC

MEMORANDUM OPINION AND ORDER
This is a civil action seeking judicial review of an administrative decision of the Acting
Commissioner of the Social Security Administration (“the Commissioner”).

Jurisdiction is

predicated upon 42 U.S.C. ' 405(g). Plaintiff appeals the denial of his application for disability
insurance benefits (“DIB”) under Title II of the Social Security Act (“the Act”). Plaintiff asserts
“the Commissioner’s decision contains errors of law, is not supported by substantial evidence, and
the Commissioner erred as a matter of law in finding” he is not entitled to DIB. Pl.’s Br. 1.
Plaintiff asks the Court to reverse the Commissioner’s decision and remand his case for further
proceedings. Pl.’s Br. 11. Both parties consented to trial on the merits before a United States
Magistrate Judge, and the case was transferred to this Court for trial and entry of judgment
pursuant to 28 U.S.C. ' 636(c), and Rule CV-72 and Appendix C to the Local Court Rules for the
Western District of Texas.

For the reasons set forth below, the Court AFFIRMS the

Commissioner’s decision.
PROCEDURAL HISTORY
Plaintiff worked as a quality control project manager until April of 2013. (R:14) He
claimed his employment ended “because his employer found him … too abrasive and difficult to

1

get along with.” (R:14) Prior to his employment as a project manager, Plaintiff worked as a
quality assurance representative, power plant millwright, and an armored tank crewman in the
United States Army. (R:14)
On February 14, 2015, Plaintiff filed an application for DIB with the Social Security
Administration (“the Agency”).

(R:118)

He alleged a back injury, post-traumatic stress

disorder, and gastrointestinal issues had disabled and prevented him from working since April 7,
2013. (R:148, 151) The Agency denied his application initially and on reconsideration. (R:80,
85)
Plaintiff then requested a hearing before an Administrative Law Judge (“ALJ”). (R:89)
After reviewing the evidence, the ALJ found that Plaintiff had the severe impairment of cervical
and lumbar degenerative disc disease.

(R:14, citing 20 C.F.R § 404.1520(c)) He further

determined, however, that Plaintiff did not have an impairment or combination of impairments that
met or medically equaled the severity of one of the impairments found in 20 C.F.R. Part 404,
Subpart B, Appendix 1. (R:21, citing 20 C.F.R §§ 404.1520(d), 404.1525, 494.1526) The ALJ
also found that Plaintiff had the residual functional capacity (“RFC”) to perform a full range of
light work. (R:21, citing 20 C.F.R § 404.1567(b)). The ALJ concluded, based on Plaintiff’s
RFC, that Plaintiff was “able to perform his past relevant work as a quality control manager” and
was “not disabled” within the meaning of the Act. (R:23, citing 20 C.F.R. § 404.1520(f)) The
ALJ accordingly issued a decision denying Plaintiff DIB. (R:9-27)
Plaintiff requested an Appeals Council review, which was denied. (R:1-6) The ALJ’s
decision, therefore, became the final decision of the Commissioner. See 20 C.F.R. § 404.981
(“The Appeals Council’s decision, or the decision of the administrative law judge if the request for

2

review is denied, is binding unless you or another party file an action in Federal district court, or
the decision is revised.”).
ISSUES
Plaintiff presents the following issues for review in his motion to reverse and remand the
final decision of the Commissioner:
1.

Whether the ALJ erred when he accorded the Veterans Administration’s
(“VA”) 80 percent disability rating little weight; and

2.

Whether the ALJ erred when he failed to explain the weight given to the
consultative examiner’s (“CE”) opinion (R:347-350) and neglected to
discuss evidence favorable to Plaintiff.

Pl.’s Br. 1-2.
Plaintiff maintains “the ALJ’s treatment of [Plaintiff’s] 80% service connected rating is
conclusory and suggests the ALJ gave it no consideration.” Pl.’s Br. 9. Plaintiff concedes “‘A
VA rating … is not legally binding on the Commissioner because the criteria applied by the two
agencies is different, but it is evidence that is entitled to a certain amount of weight and must be
considered by the ALJ.’” Pl.’s Br. 7 (quoting Chambliss v. Massanari, 269 F.3d 520, 522 (5th
Cir. 2001)). He argues “[t]he The ALJ’s failure to properly scrutinize [Plaintiff’s] VA rating
requires remand.” Pl.’s Br. 9 (citing Welch v. Barnhart, 337 F.Supp.2d 929, 936 (S.D. Tex. 2004)
(“Where the ALJ disagrees with VA’s disability findings, there is no reversible error as long as the
record reflects consideration of those findings.”)).
Plaintiff also explains “an ‘ALJ may not selectively discuss only such evidence which
favors his ultimate conclusion’ and that the ‘failure to consider an entire line of evidence conflicts
with the obligation of considering all of the evidence.’” Pl.’s Br. 10 (quoting Francois v.
Commissioner, 158 F.Supp.2d 748, 766 (E.D. La. 2001)). He asserts the ALJ did not assign “any

3

weight” to the CE’s opinion that Plaintiff’s anxiety and depression impaired his “ability to make
occupational, social, and personal adjustments.” Pl.’s Br. 10, quoting R:350. He argues that had
the ALJ considered and adopted this opinion, he would have “limited” Plaintiff’s work “at the light
exertional level.” Pl.’s Br. 10. This, in turn, would have precluded Plaintiff from performing his
prior relevant work as a quality control manager. Pl.’s Br. 10. He concludes that “[s]ince the
Commissioner has the burden of showing there are no other jobs that exist in significant numbers
in the national economy, the case must be remanded for further analysis and development.” Pl.’s
Br. 10 (citing 20 C.F.R. § 404.1560(c)(2) (“In order to support a finding that you are not disabled
at this fifth step of the sequential evaluation process, we are responsible for providing evidence
that demonstrates that other work exists in significant numbers in the national economy …”)).
Defendant explains “Plaintiff … did not produce the original VA rating decision … so the
ALJ was only able to consider the rating percentage itself … in the VA’s treatment record.”
Def.’s Br. 5. The VA treatment record indicates “that Plaintiff’s total disability rating of 80% was
based on PTSD (70%), lumbosacral or cervical strain (10%), and a hiatal hernia (10%).” Def.’s
Br. 5 n.4 (citing R:403). Defendant contends “[t]he ALJ fully explained what evidence led him to
conclude that Plaintiff’s PTSD was not severe under Social Security disability standards.” Def.’s
Br. 7 (citing R:14-15, 17-20). Accordingly, Defendant maintains, “the ALJ’s decision to assign
little weight to the VA rating based on Plaintiff’s PTSD was proper.” Def.’s Br. 7. Defendant
suggests the ALJ similarly considered Plaintiff’s VA rating pertaining to his physical impairments,
and again decided to give the VA rating little weight. Def.’s Br. 8-12. Defendant argues that,
“[h]ere, like in Chambliss, the ALJ considered all of the evidence before him and narratively
provided reasons for giving the VA rating little weight.” Def.’s Br. 10 (citing Chambliss v.
Massanari, 269 F.3d 520, 522 (5th Cir. 2001)).
4

Defendant asserts the ALJ considered the CE’s opinion. Def.’s Br. 10. He observes the
ALJ discussed the CE’s report on Plaintiff’s psychological consultative examination extensively
in pages 8 and 9 of his opinion. (R:19-20, 347-350). Defendant argues the Plaintiff focuses on
one of the CE’s conclusions, but not the overall report which contradicts Plaintiff’s argument that
Plaintiff has moderate limitations:
Plaintiff appears to ignore these normal examination findings,
relying instead of Dr. Schutte’s conclusion that Plaintiff’s “ability to
make occupational, social, and personal adjustments seem
moderately impaired” (Tr. 350). See Pl.’s Br. at 10. However,
this opinion appears to be based not on the above normal findings,
but on Plaintiff’s subjective reports and a Global Assessment of
Functioning (GAF) score of 60, both of which the ALJ properly
found the evidence did not support (Tr. 14-15, 17-20, 348-50). See
Falco v. Shalala, 27 F.3d 160, 163 (5th Cir. 1994) (subjective
complaints must be corroborated by objective medical evidence); 20
C.F.R. § 404.1528(a) (the claimant’s statements alone are not
sufficient to establish an impairment).
Def.’s Br. 13-14.
Defendant “submits that substantial evidence of record supports the ALJ’s determination
that Plaintiff was not disabled because he could perform other work existing in significant
numbers in the national economy.” Def.’s Br. 15. Defendant asks the Court to affirm the ALJ’s
decision.
Plaintiff replies the only reason provided by the ALJ for giving little weight to the VA’s
disability rating was that he “must make a disability determination based on Social Security law.”
Reply Br. 1. He argues this statement “does not reflect meaningful consideration because it is
boilerplate language and conclusory.” Reply Br. 1.
Furthermore, Plaintiff notes the ALJ found that he “was able to perform his past relevant
work and did not proceed to the fifth step of the sequential evaluation process.” Reply Br. 3.

5

Plaintiff further notes the CE opined that he “had a moderate limitation in the ability to make
occupational, social and personal adjustments.” Reply Br. 2 (citing R:350). He maintains this
“moderate limitation” would preclude him from performing his past relevant work as a quality
control manager. Reply Br. 3. He argues that since “[i]t is the Commissioner’s burden to show
there are no other jobs that exist in significant numbers in the national economy at the fifth step of
the sequential evaluation process,” and “[t]he ALJ did not elicit testimony from the vocational
expert concerning other jobs in the national economy,” the Court should remand this case for
further proceedings. Reply Br. 3-4.
LEGAL STANDARDS
I.

Evaluation Process

Payments under the DIB program are authorized by Title II of the Act and are funded by
Social Security taxes. The program provides income to individuals who are forced into
involuntary, premature retirement, provided they are both insured and disabled, regardless of
indigence. Applicants seeking payments must prove “disability” within the meaning of the Act.
42 U.S.C. § 423(d); 20 C.F.R. § 404.1505(a). “Disability” is defined as the “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or 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).
An ALJ must engage in a sequential five-step inquiry to determine whether a claimant is
“disabled” according to the Act:
1. An individual who is working and engaging in
substantial gainful activity will not be found disabled regardless of
the medical findings. 20 C.F.R. § 404.1520(b).

6

2. An individual who does not have a “severe impairment”
will not be found to be disabled. 20 C.F.R. § 404.1520(c).
3. An individual who “meets or equals a listed impairment”
found in 20 C.F.R. Part 404, Subpart B, Appendix 1 will be
considered disabled without consideration of vocational factors.
20 C.F.R. § 404.1520(d).
4. If an individual is capable of performing the work he has
done in the past, a finding of “not disabled” must be made. See 20
C.F.R. § 404.1520(f) (“[W]e will compare our residual functional
capacity assessment … with the physical and mental demands of
your past relevant work. … If you can still do this kind of work, we
will find that you are not disabled.”).
5. If an individual’s impairment precludes performance of
his past work, then other factors, including age, education, past
work experience, and residual functional capacity must be
considered to determine if any work can be performed. 20 C.F.R. §
404.1520(g).
See also Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000).
The claimant has the burden to prove disability under the first four steps. Myers v. Apfel,
238 F.3d 617, 619 (5th Cir. 2001). If the claimant successfully carries this burden, the burden
shifts to the Commissioner in step five to show that other substantial gainful employment is
available in the national economy, which the claimant is capable of performing. Masterson v.
Barnhart, 309 F.3d 267, 272 (5th Cir. 2002). The Commissioner may meet this burden by using
the opinion testimony of vocational experts (“VE”) or the administrative guidelines in the
regulations. See Rivers v. Schweiker, 684 F.2d 1144, 1155 (5th Cir. 1982) (“[T]here is no
requirement in the Act that the Secretary present direct vocational testimony to sustain his burden
of persuasion that there is other substantial gainful employment in the economy which the
claimant can perform.”).

If the Commissioner is able to verify that other work exists in

significant numbers in the national economy that the claimant can perform in spite of his existing
7

impairments, the burden shifts back to the claimant to prove that he cannot, in fact, perform the
alternate work suggested. Boyd v. Apfel, 239 F.3d 698, 705 (5th Cir. 2001). “A finding that the
claimant is not disabled at any step is conclusive and ends the inquiry.” Greenspan v. Shalala, 38
F.3d 232, 235 (5th Cir. 1994).
II.

Standard of Review

Judicial review of the Commissioner’s denial of disability benefits is limited to whether the
final decision is supported by substantial evidence on the record as a whole and whether the proper
legal standards were applied to evaluate the evidence.

42 U.S.C. ' 405(g); Masterson v.

Barnhart, 309 F.3d 267, 272 (5th Cir. 2002). “Substantial evidence” means that the evidence
must be enough to allow a reasonable mind to support the Commissioner’s decision; it must be
“more than a mere scintilla” and “less than a preponderance.” Richardson v. Perales, 402 U.S.
389, 401 (1971); Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002). Substantial evidence
is:
such relevant evidence as a reasonable mind might accept to support
a conclusion. It must do more than create a suspicion of the
existence of the fact to be established, but “no substantial evidence”
will be found 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) (quoting Hames v. Heckler, 707 F.2d 162,
164 (5th Cir.1983)). 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. Masterson, 309 F.3d at 272.
“Conflicts in the evidence are for the [Commissioner] and not the courts to resolve.” Newton v.
Apfel, 209 F.3d 448, 452 (5th Cir. 2000).
With these principles in mind, the Court turns to the merits of Plaintiff’s claims.
8

ANALYSIS
I.

Whether the ALJ erred when he accorded the Veterans Administration’s 80 percent
disability rating little weight
Plaintiff asserts “the ALJ’s treatment of [his] 80% service connected rating is conclusory

and suggests the ALJ gave it no consideration.” Pl.’s Br. 9. He argues “[t]he The ALJ’s failure
to properly scrutinize [Plaintiff’s] VA rating requires remand.” Pl.’s Br. 9 (citing Welch v.
Barnhart, 337 F.Supp.2d 929, 936 (S.D. Tex. 2004)). Defendant notes the VA treatment record
indicated “that Plaintiff’s total disability rating of 80% was based on PTSD (70%), lumbosacral or
cervical strain (10%), and a hiatal hernia (10%).” Def.’s Br. 5 n.4 (citing R:403). Defendant
contends “[t]he ALJ fully explained what evidence led him to conclude that Plaintiff’s PTSD was
not severe under Social Security disability standards.” Def.’s Br. 7 (citing R:14-15, 17-20).
Accordingly, Defendant maintains, “the ALJ’s decision to assign little weight to the VA rating
based on Plaintiff’s PTSD was proper.” Def.’s Br. 7.
“A VA rating … is not legally binding on the Commissioner because the criteria applied by
the two agencies is different, but it is evidence that is entitled to a certain amount of weight and
must be considered by the ALJ.” Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001).
The “relative weight … given this type of evidence will vary depending upon the factual
circumstances of each case.” Id. Where the ALJ disagrees with VA’s disability findings, there
is no reversible error as long as the record reflects consideration of the “findings and the evidence
underlying each.” Kinash v. Callahan, 129 F.3d 736, 739 (5th Cir. 1997).
Plaintiff alleged he suffered from post-traumatic stress disorder. The ALJ’s decision
indicates he considered VA mental health records related to Plaintiff’s post-traumatic stress
disorder prepared by Brenda Sikorski, MSN, PMHNP, and Bobby Lewis, LCSW at the Veterans

9

Administration Clinic in El Paso, Texas. (R:17-18) Sikorski reported on November 16, 2013,
that Plaintiff “presented alert and cooperative … but irritable and angry.” (R:17) She explained
he “was able to demonstrate an organized, coherent, logical, and goal oriented thought process.”
(R:17) Nevertheless, she concluded Plaintiff’s memory was “impaired.” (R:17) On February
10, 2014, Lewis assessed Plaintiff and determined he had a “personality disorder and
post-traumatic stress disorder,” and recommended “one counseling session per month for the next
twelve months.” (R:18) At a follow-up appointment on April 24, 2014, Lewis described
Plaintiff as “oriented in all spheres with a linear thought process.” (R:18) The record contained
no further documents related to Plaintiff’s treatment at the VA. The ALJ found “the lack of
treatment is not consistent with the severity of symptoms alleged in connection with this
application.” (R:19)
Plaintiff also alleged disability due to a back injury and gastrointestinal issues. (R:151)
In evaluating these physical impairments, the ALJ considered diagnostic test results, including an
August 2013 magnetic resonance imaging (MRI) scan of Plaintiff’s lumbar spine showing minor
disc bulging and small annular tears but no significant neural compromise, and a September 2013
lumbar spine x-ray that was “essentially normal” (R:15-16, 22). The ALJ also considered
October 2014 lumbar and cervical spine x-rays, which chiropractor, Michael Ontiveros, D.C.,
interpreted to show a mildly decreased cervical curve, a mildly increased lumbar curve, and
decreased disc height. (R:16) The chiropractor recommended 25 sessions of care, but Plaintiff
did not present for further care after the VA approved his request for benefits. (R:16)
In addition, the ALJ considered the medical opinions of two state agency physicians in
determining that the evidence did not support a finding consistent with the VA rating. Dr.
Shabnam Rehman, M.D. reviewed the evidence and opined that Plaintiff “retained the residual
10

functional capacity for medium exertional level work with postural limitations.” (R:16) Dr.
Randal Reid, M.D., also reviewed the evidence and opined that Plaintiff “retained the residual
functional capacity for a range of light exertional level work with postural limitations.” (R:17)
The ALJ ultimately gave “no weight” to Dr. Rehman’s opinion and “some weight” to Dr. Reid’s
opinion. (R:17) See Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002) (explaining it is
the ALJ’s responsibility to weigh and resolve conflicts in the medical opinion evidence).
In finding that Plaintiff did not have a disabling physical impairment, the ALJ also
evaluated Plaintiff’s subjective statements. For example, Plaintiff stated he took prescribed
Vicodin for pain “maybe” once a week, which the ALJ found “is inconsistent with the severity of
symptoms alleged by the claimant in connection with this application.” (R:17) In his disability
application materials, Plaintiff stated he cared for children and animals, prepared full meals, and
performed household chores like cleaning, mowing, and doing automotive repairs. (R:166-67)
He also said he had no problem driving or shopping in stores, enjoyed hunting and fishing, and
could walk for miles before needing to stop and rest. (R: 168-70) In November 2013, Plaintiff
claimed he exercised by “running” and playing “racquet ball.” (R:15 n.1, 264) He reported to
the CE at his May 2014 consultative examination that he was “a ‘full-time’ college student,” felt
able to work, and that he could dress and bathe himself as well as prepare meals and perform
household chores. (R:17, 349) Thus, Plaintiff’s own reported activities undermine his claim of
disabling back pain and support the ALJ’s decision not to adopt the VA’s 80% disability rating.
See Jones v. Heckler, 702 F.2d 616, 621–22 (5th Cir. 1983) (“It is within the discretion of the
administrative law judge to determine the disabling nature of pain.”).
The ALJ then explained his decision to give little weight to Plaintiff’s service connected
disability rating:
11

[T]he undersigned again notes the record is silent in regards to
continued specialized mental health care after April 2014. Such a
lack of treatment is not consistent with the severity of symptoms
alleged in connection with this application.
The undersigned notes that the record identifies the claimant to have
an 80% service connected disability resulting in an unemployable
categorization (Ex. 6DE-2).
This impairment rating was
determined in accordance with the requirements of the Veteran’s
Administration’s rules. Social Security Regulation SSR 06-3p
provides that the undersigned must review decisions of disability by
other governmental and nongovernmental agencies. A decision by
any nongovernmental agency or any other governmental agency
pertaining to disability is based on its own rules. The undersigned
must make a disability determination based on Social Security law.
Therefore, the undersigned has assigned little weight to the
claimant’s service connected disability rating.
(R:23)
An ALJ is free to disagree with a VA rating when he considers the underlying evidence and
substantial evidence supports his decision. Kinash v. Callahan, 129 F.3d 736, 739 (5th Cir.
1997).

The record shows the ALJ considered objective medical records, examining and

consulting physicians’ opinions, and Plaintiff’s subjective reports. The ALJ’s reasons for giving
the VA rating little weight are evident from his discussion of the substantial evidence that supports
his conclusion. Moreover, the record contains more than a mere scintilla of evidence to support
the ALJ’s conclusion. The evidence is sufficient to allow a reasonable mind to support the
Commissioner’s ultimate decision. Accordingly, the Court finds that the ALJ’s decision to assign
little weight to Plaintiff’s VA rating was proper.
II.

Whether the ALJ erred when he failed to explain the weight given to the consultative
examiner’s opinion and neglected to discuss evidence favorable to Plaintiff.
Plaintiff also asserts the ALJ failed to assign “any weight” to the CE’s opinion that

Plaintiff’s anxiety and depression impaired his “ability to make occupational, social, and personal
12

adjustments.” Pl.’s Br. 10 (quoting R:350). He argues that had the ALJ considered and adopted
the CE’s opinion, he would have “limited” Plaintiff’s work “at the light exertional level.” Pl.’s
Br. 10. Such a finding would have precluded Plaintiff from performing his prior relevant work as
a quality control manager. Pl.’s Br. 10. He concludes that “[s]ince the Commissioner has the
burden of showing there are no other jobs that exist in significant numbers in the national
economy, the case must be remanded for further analysis and development.” Pl.’s Br. 10.
Defendant asserts the ALJ considered the CE’s opinion. Def.’s Br. 10. Defendant notes the ALJ
discussed the CE’s report on Plaintiff’s psychological consultative examination extensively in
pages 8 and 9 of his opinion. (R:19-20, 347-350). Defendant argues the Plaintiff focuses on one
of the CE’s conclusions, but not the overall report which contradicts Plaintiff’s argument that
Plaintiff has moderate limitations. Def.’s Br. 13-14.
“The ALJ has a duty to develop the facts fully and fairly relating to an applicant’s claim for
disability benefits. If the ALJ does not satisfy his duty, his decision is not substantially justified.”
Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995). The relative weight given the evidence is
within the ALJ’s discretion. Chambliss v. Massanari, 269 F.3d 520, 523 (5th Cir. 2001).
Moreover, a court “will not vacate a judgment unless the substantial rights of a party have been
affected.” Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988) (citing Carter v. Massey–
Ferguson, Inc., 716 F.2d 344, 349 (5th Cir.1983); Fed. R. Civ. P. 61).

“[P]rocedural

improprieties … will … constitute a basis for remand only if such improprieties would cast into
doubt the existence of substantial evidence to support the ALJ’s decision. Morris v. Bowen, 864
F.2d 333, 335 (5th Cir. 1988).
A review of the record discloses substantial evidence to support the ALJ’s RFC decision in
this case.

As the ALJ recounted, the CE, Dr. James W. Schutte, Ph.D., found Plaintiff’s
13

“cognitive functions to be grossly intact as he was alert and responsive to his surroundings. …
Attention and concentration appeared within the normal limits ...” (R:18) The CE determined
Plaintiff had “an unspecified depressive disorder, an unspecified anxiety disorder, and an
undifferentiated somatoform disorder [and] assigned a Global Assessment of Functioning (GAF)
score of sixty.” (R:19) “A GAF score of ‘51-60’ is defined by DSM IV as ‘[m]oderate
symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate
difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or
co-workers).’” (R:19, n.3) The ALJ explained, however, “that a GAF score is not determinative
of a claimant’s ability to work; rather, GAF scores are snapshots of a patient’s mental functioning
at the time of the evaluation, and the score can greatly fluctuate over time.” (R:19) Therefore,
he afforded Plaintiff’s GAF score “little weight, giving more weight to the narrative reports.”
(R:19)
The ALJ also noted that on May 22, 2014, the state agency medical consultant, Dr. Susan
Posey, Psy.D., opined that Petitioner “had a mild restriction in activities of daily living, moderate
difficulties maintaining social functioning, and moderate difficulties maintaining concentration,
persistence or pace with no episodes of decompensation.” (R:19) Dr. Posey added that, despite
these difficulties, Plaintiff “could understand, remember, and carryout 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.” (R:19) The ALJ further noted that
“[o]n September 4, 2014, State agency medical consultant, Leela Reddy, M.D., affirmed Dr.
Posey’s opinions during an independent reconsideration level assessment.” (R:19) The ALJ
finally noted that Plaintiff “was not prescribed psychotropic medications for the management of
his post-traumatic stress disorder symptoms as of November 6, 2013.” (R: 19)
14

In this case, the ALJ considered the CE’s findings and other relevant evidence, including
evidence favorable to Plaintiff, in fashioning the RFC, which did not include mental limitations:
The claimant’s medically determinable mental impairment of a
post-traumatic stress disorder, an unspecified depressive disorder,
an unspecified anxiety disorder, and an undifferentiated
somatoform disorder do not cause more than minimal limitation in
the claimant’s ability to perform basic mental work activities and is
therefore non-severe. In making this finding the undersigned has
considered the four broad functional areas set out in the disability
regulations for evaluating mental disorders and in section 12.00C of
the Listing of Impairments (20 C.F.R. 404, Subpart P. Appendix 1).
… Because the claimant’s medically determinable mental
impairment causes no more than “mild” limitations in any of the
first three functional areas and “no” episodes of decompensation
which have been of extended duration in the fourth area, it is
non-severe (20 C.F.R. 404.1520a(d)(1)).
(R:19-20)
The ALJ accordingly concluded at step four of the sequential five-step inquiry, based on
Plaintiff’s RFC, that Plaintiff was “able to perform his past relevant work as a quality control
manager” and was “not disabled” within the meaning of the Act. (R:23, citing 20 C.F.R. §
404.1520(f)) The ALJ therefore issued a decision denying Plaintiff DIB. (R:9-27)
The ALJ’s decision shows he fully and fairly developed all of the evidence and determined
that Plaintiff’s post-traumatic stress disorder, depressive disorder, and anxiety disorder were
“non-severe” because they caused “no limitation” in the functional areas associated with his
activities of daily living; “mild limitation” in the functional areas associated with his social
functioning, concentration, persistence, or pace; and “no episodes of decompensation.”
(R:19-20) The evidence in the record is sufficient to allow a reasonable mind to support the
Commissioner’s ultimate decision. Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir. 1988), The
ALJ applied the proper legal standard and there are no procedural improprieties which constitute a

15

basis for remand. 20 C.F.R. § 404.1520(f); Morris v. Bowen, 864 F.2d 333, 335 (5th Cir. 1988).
Because substantial evidence supports the ALJ’s determination that Plaintiff’s post-traumatic
stress disorder, depressive disorder, and anxiety disorder were non-severe, Plaintiff has not shown
the necessary prejudice for remand. Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002).
CONCLUSION
Based on the foregoing, the Court hereby ORDERS that the decision of the Commissioner
be AFFIRMED consistent with this opinion.
SIGNED and ENTERED on October 17, 2016.

_____________________________________
ROBERT F. CASTANEDA
UNITED STATES MAGISTRATE JUDGE

16