Haynes v. Astrue

Filing 14

REPORT AND RECOMMENDATIONS re 3 Complaint filed by James Marcus Haynes, Jr. CASE NO LONGER REFERRED to Magistrate Judge Jeffrey C. Manske. Signed by Judge Jeffrey C. Manske. (ad)

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

fL
CLt.

JUN 2 9

2015

WACO DIVISION
JAMES HAYNES, JR.,
Plaintiff,

§
§

v.

§

CAROLYN W. COLVIN',
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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§
§
§

§

CIVIL ACTION NO.
6: 12-cv-00330-WSS-JCM

REPORT AND RECOMMENDATION OF
THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE WALTER S. SMITH, JR.,
UNITED STATES DISTRICT JUDGE
This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C.

§

636(b)(1)(C) and Rules 1(h) and 4(b) of Appendix C of the Local Rules of the United States
District Court for the Western District of Texas, Local Rules for the Assignment of Duties to

United States Magistrate Judges.
I. BACKGROUND AND STATEMENT OF THE CASE
James Haynes, Jr. (hereinafter "Plaintiff') seeks judicial review of a final decision of the

Acting Commissioner of Social Security denying his claim for Disability Insurance

Carolyn W. Colvin became the Acting Commissioner of Social Security on February
of the Federal Rules of Civil Procedure, Carolyn W. Colvin
should be substituted for Michael J. Astrue as defendant in this suit. No further action need be
taken to continue this suit by reason of the last sentence of 205(g) of the Social Security Act
(Act), 42 U.S.C. § 405(g).
14, 2013. Pursuant to Rule 25(d)

Benefits (DIB) under Title II of the Social Security Act ("the Act"). Plaintiff was born on

January 9, 1969 and was 40 years old on January 27, 2009, the alleged disability onset date. Tr.
18, 71. He obtained a GED and worked as a truck driver prior to his claim. Tr. 31. Plaintiff filed

an application for Title II and supplemental security income ("SSI") benefits on February 26,
2010 due to hepatitis C, irritable bowel syndrome, malignant melanoma, benign essential

tremors, bipolar disorder, and panic attacks. Tr. 71, 78. The Agency initially denied Plaintiff's

claim on June 7, 2010. Tr. 79. On June 21, 2010, Plaintiff asked the Agency for a
reconsideration, which was subsequently denied on August 11, 2010. Tr. 85, 88. Thereafter,

Plaintiff filed a request for an administrative hearing on September 2, 2010. Tr. 92. A de novo
administrative hearing was conducted by Administrative Law Judge ("AU") Marguerite Lokey

in Waco, Texas, on February 25, 2011. Tr. 26-70.
Plaintiff, represented by his former attorney Susan Rodriguez, appeared at the hearing

and testified along with Thomas Irons, a vocational expert ("yE"), and Lupita Bermea, a hearing
monitor. Tr. 28. The AU issued an opinion on November 10, 2011 concluding that Plaintiff was

not disabled within the meaning of the Social Security Act. Tr. 11, 19.
The AU made a non-disabled determination through utilizing the five-step sequential

evaluation process established by the Social Security Administration. Tr. 12. At step one, the
AU ruled that Plaintiff had not engaged in substantial gainful activity since the alleged onset

date of January 27, 2009. Tr. 13. At step two, the AU found that Plaintiff had the following
severe impairments: hepatitis C, bipolar disorder, benign essential tremors, history of skin cancer

(melanoma), obesity, diarrhea, and panic attacks. Tr. 13. At step three, however, the AU found

2

that Plaintiffs impairment or combination of impairments did not equal one of the listed
impairments in 20 C.F.R., Part 404, Subpart P, Appendix

1. Tr. 13.

Prior to proceeding to step four, the AU determined that Plaintiff has the residual
functional capacity ("RFC") to perform light work and to perform dexterous tasks with his
fingers. Tr. 14. The AU additionally found that Plaintiff should avoid hazardous work, including

work involving heights and dangerous machinery, and should work indoors where he has access
to bathroom facilities. Tr. 14. The AU found that Plaintiff has the mental capacity to perform

simple routine work with incidental contact with others; however, he should not regularly work

directly with the public as part of his job. Tr. 14.

In making Plaintiffs RFC determination the AU considered all symptoms to the extent
that she found them consistent with available objective medical evidence and other evidence in

the record. Tr. 15. The AU determined that Dr. Teague's assessment was not supported by the
available objective medical evidence in the record and therefore afforded it little evidentiary
value. Tr. 17. Additionally, Plaintiffs statements concerning the intensity, persistence, and

limiting effects of his symptoms were inconsistent with the AU' s assessment of Plaintiffs RFC
and were unsupported by the evidentiary record. Tr. 17. The AU considered Plaintiffs previous

conviction for theft in evaluating his credibility of his testimony. Tr. 17.
At step four, the AU found, given Plaintiffs RFC, Plaintiff is unable to perform any past

relevant work. Tr. 18. At step five, the AU determined that based on the vocational expert's
testimony and considering Plaintiffs age, education, work experience, and RFC, there are jobs in

significant numbers that exist within the national economy that Plaintiff can perform including:

"cleaner housekeeping," "binding machine [operator]," and "coin machine collector". Tr. 18-19.
Accordingly, the AU found Plaintiff not disabled as defined in the Act.

Plaintiff timely appealed the AU's decision to the Appeals Council, but the requested
review was denied on November 2, 2012. Tr. 6. This decision served as the final decision of the
Commissioner of Social Security in regards to Plaintiffs claim. Plaintiff timely commenced the

present action on December 10, 2012, seeking judicial review of the administrative proceedings.
P1.'s Compi. (ECF No.1). On January 15, 2014, this Court ordered the parties to submit briefs.

II. JUDICIAL REVIEW
The Court's ability to review a Commissioner's denial of disability benefits "is limited to
determining whether (1) the decision is supported by substantial evidence and (2) proper legal
standards were used to evaluate the evidence." Martinez

v.

Chater, 64 F.3d 172, 173 (5th Cir.

1995). Courts give higher deference to the Commissioner's findings

if they are supported by

substantial evidence. Id. The Court is not allowed to substitute its own judgment for that of the
Commissioner's. Davis

v.

Schweiker, 641 F.2d 283, 285 (5th Cir. 1981). "The findings of the

Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be

conclusive.. . the court shall review only the question of conformity with such regulations and
the validity of such regulations." 42 U.S.C.A.

§

405(g) (West).

"Substantial evidence is more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion." Consol. Edison Co. of New
York v. N.L.R.B., 305 U.S. 197, 229 (1938).

If there is substantial evidence that supports the

Commissioner's findings then that decision must be affirmed by the Court. Martinez, 64 F.3d at
173. The Court can only find that no substantial evidence exists when there is a conspicuous

absence of credible choices or when there is no contrary medical evidence. Shannon v. Calfano,
485 F. Supp. 939, 940 (N.D. Tex. 1980).
To determine whether substantial evidence of a disability exists, Courts weighs four

factors: (1) the available objective medical evidence; (2) the diagnoses and opinions of the

claimant's treating or examining physician; (3) the claimant's subjective evidence of pain and
disability; and (4) the claimant's age, education, and work history. Perez v. Barnhart, 415 F.3d
457, 462 (5th Cir. 2005). Even if the preponderance of evidence points in the claimant's favor,
the Court may not reverse the AU's findings unless no substantial evidence exists that supports

their finding. Carry v. Heckler, 750 F.2d 479, 482 (5th Cir. 1985); Martinez, 64 F.3d at 173
((citing Richardson, 402 U.S. at 390)). The scope of review is limited to the facts in the record;

the Court will not reweigh the evidence, try the issues de novo, or substitute its own judgment
for that of the Commissioner. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994).
In deciding a case, "[t]he court shall have [the] power to enter, upon the pleadings and

transcript of the record, a judgment affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the cause for a rehearing." 42
U.S.C.A. § 405(g) (West). Reversal by the Court is only appropriate if the applicant is able to

show that he/she was prejudiced by the AU's failure to develop the facts of his claim fully and
fairly. Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995). There must be substantial evidence

supporting the claimant's position for a Court to grant an award of benefits; "a judicial award of
benefits is proper only where the proof of disability is overwhelming, or where the proof of
disability is strong and evidence to the contrary is lacking." Faucher
Servs., 17 F.3d 171, 176 (6th Cir. 1994).

5

v.

Sec'y of Health & Human

III. ESTABLISHING ELIGIBILITY FOR DISABILITY INSURANCE BENEFITS
The legal standard for determining disability under the Act is whether a claimant is

unable 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 is
expected to last continuously for at least twelve months. 42 U.S.C.A. § 423 (d)(l)(A). The

claimant's impairments must be of such severity that the claimant is unable to perform previous
work and cannot, considering age, education, and work experience, engage in any other kind of
substantial gainful work that exists in the national economy. 42 U.S.C.A.

§

423 (d)(2)(A). In

determining whether an individual applicant is capable of performing "substantial gainful
activity," a five-step sequential evaluation process is utilized. 20 C.F.R.

§

404.1520(a)(l). If the

Commissioner can determine that the claimant is disabled or not disabled at any step, a decision
is made and the remaining steps are not considered. 20 C.F.R.

Commissioner proceeds to the next step. 20 C.F.R.

§

§

404.1 520(a)(4). Otherwise, the

404.1 520(a)(4). The steps are summarized

as follows:
(i)

Whether the claimant is working in work that is considered a substantial gainful activity.
If so, the claimant is not considered disabled.

(ii)

Whether the medical severity of the claimant's impairment or combination of
impairments significantly limits the claimant's mental or physical ability to do basic
work. If it does not limit the claimant's ability to work, he is not considered disabled.

(iii)

Whether the claimant's impairment(s) meets or equals one that is listed in 20 C.F.R. §
404.1520 Appendix 1. If the impairment meets or equals a listing in the appendix, the
claimant is considered disabled without taking into consideration his age, education, and
work experience.

(iv)

Whether the claimant can still perform his past relevant work when considering his
residual functional capacity. If the claimant can still perform his past relevant work, he is
not considered disabled.

(v)

Whether the claimant, considering his residual functional capacity and age, education and
work experience can make an adjustment for any other work that exists in significant
numbers in the national economy. If the claimant can make the adjustment, then he is not
disabled, but if he cannot, then the Commissioner will find that he is disabled.

See 20 C.F.R. § 404.1520(a)(4)(i)-(t); 20 C.F.R. § 404.1560(c).

The burden of proof is on the claimant to show with sufficient proof that he suffers from

a disability for the first four steps of the analysis, but the burden shifts to the Commissioner for
the last step. Masterson v. Barnhart, 309 F.3d 267, 271-72 (5th Cir. 2002). The Commissioner is

responsible for providing evidence showing that other work exists in significant numbers in the
national economy that the claimant can perform given his RFC and other vocational factors. 20
C.F.R.

§

404.1560(c)(2). The Commissioner uses the RFC developed for step four for the

claimant's past relevant work and does not need to provide any additional evidence regarding the

claimant's RFC. 20 C.F.R.

§

404.1560(c)(2). After step four, "the burden of proof then returns to

the claimant to rebut the Commissioner's showing." Masterson, 309 F.3d at 272.
Evidence that a claimant submits or that the Commissioner obtains may contain medical

opinions from a variety of medical sources reflecting their judgments regarding the claimant's
condition. 20 C.F.R.

§

416.927(a)(1). The opinions are considered with all of the relevant

evidence in the record. 20 C.F.R.

§

4 16.927(b). The Commissioner evaluates all medical

opinions it receives and determines the weight of each opinion based on several factors including

but not limited to: (1) examining relationship; (2) nature of the relationship (duration and
frequency of visits); (3) supportability; (4) consistency with the record; (5) specialization of the
physician; and (6) other factors the claimant brings to the Commissioner's attention. 20 C.F.R.
404.1527. Although ALJs consider medical testimony when making their decisions, "that

opinion is but additional evidence, however, to be considered by the judge along with other

7

§

'medical evidence' in reaching an independent determination." Reynolds v. Sec'y of Health &
Human Sen's., 707 F.2d 927, 930 (6th Cir. 1983) (citing Sullivan

v.

Weinberger, 493 F.2d 855

(5th Cir. 1974).

When determining whether a claimant is legally disabled Courts give considerable weight
to the medical testimony of their primary physician because they are the most familiar with the

claimant's injuries and medical background. Scott

v.

Heckler, 770 F.2d 482, 485 (5th Cir. 1985).

However, this does not mean that the treating physician's opinions are conclusive in regards to

determining disability status because the AU is solely responsible for making this determination.

Greenspan, 38 F.3d at 237. The AU may decide to attribute little or no weight to that

physician's testimony if good cause is shown. Id. Courts recognize that good cause is shown to
the contrary of the physician's opinions when "his statement as to disability is so brief and
conclusory that it lacks strong persuasive weight, is not supported by medically acceptable

clinical laboratory diagnostic techniques, or is otherwise unsupported by the evidence." Scott,
770 F.2d at 485. The AU thus determines the weight given to a medical opinion; however, the

reasons in the determination for the weight given must be explained. See 20 C.F.R.

§

404.1 527(c)(2). If there are inconsistencies between evidence in the record, including medical

opinions, the AU will weigh all the other evidence and, if possible, make a determination

regarding claimant's legal disability status. Greenspan, 38 F.3d at 237.
In assessing a claimant's RFC the claimant's physical exertion capacity for work is
determined based on the evidentiary record. 20 C.F.R.

§

404.1567. The Commissioner classifies

the physical exertion requirements of work in the national economy into sedentary, light,
medium, heavy, and very heavy. 20 C.F.R.

§

404.1567. A determination of 'light work' involves

8

lifting no more than 20 pounds with frequent lifting of 10 pounds, a good deal of

walking/standing, and if the claimant is sitting, pulling/pushing of armlleg controls. 20 C.F.R.

§

404.1567(b). A determination that the claimant can perform 'medium work' entails lifting no
more than 50 pounds with frequent lifting of 25 pounds, while 'heavy work' entails lifting no
more than 100 pounds at a time with frequent lifting of 50 pounds. 20 C.F.R.

§

404.1 567(c)-(d).

A determination that the claimant can perform 'very heavy work' involves lifting of objects

weighing more than 100 pounds at a time with frequent lifting of objects weighing 50 pounds. 20
C.F.R. § 404.1567(e). If a determination is made that a claimant can perform 'very heavy work'

then they are capable of performing 'light,' 'sedentary,' 'medium,' and 'heavy' work. 20 C.F.R.
§ 404.1 567(a)-(e).

The RFC assessment is a function-by-function assessment based on exertional and

nonexertional capacity. Titles II & XVI: Assessing Residual Functional Capacity in Initial
Claims, SSR 96-8P (S.S.A. July 2, 1996). As with exertional capacity, nonexertional capacity is

expressed in work-related functions. Id. Work-related mental functions and activities include the
abilities to: (1) follow and understand given instructions; (2) make work-related decisions and

judgments; (3) respond appropriately to supervision, co-workers, and other stimuli; and (4) deal
with change in the work environment. id. Without the function-by-function assessment of the

individual's mental and physical capacities it is not possible to determine if the claimant is able
to perform past relevant work or other types of work. Jones v. Astrue, No. 3:1 l-CV-3416-M BH,

2013 WL 1293900, at *16 (N.D. Tex. Mar. 7, 2013). "[E]ven if the AU fails to conduct a

function-by-function analysis, he satisfies this requirement if he bases his RFC assessment, at
least in part, on a state medical examiner's report containing a function-by-function analysis." Id.

IV. ISSUES PRESENTED

Plaintiff raises the following issues for the Court's review:
1.

The AU erred by not considering the factors listed in 20 C.F.R. § 404.1527, 416.927
before declining to give weight to the opinions of the claimant's treating physician.

2. The

AU's evaluation of the claimant's RFC is fatally flawed and the finding is not based

on substantial evidence.
3. The record warrants an award

of benefits, or in the alternative a remand. 2
V. DISCUSSION

A. Plaintiff's Claim That the AU Did Not Consider All of the Factors in 20 C.F.R. §
404.1527, 416.927 Before Affording Little Weight to Dr. Christopher Teague's Opinion.

Plaintiff alleges that the AU failed to give deference to the opinion of Dr. Christopher
Teague, the treating physician. Pl.'s Br. at 6. The AU, under its authority, decided to afford little
weight to Dr. Teague's assessment because it is not supported by the objective evidence in the
record. Tr. 17. The AU determined that Dr. Teague' s assessment on February 18, 2011 (Medical
Opinion RE: Ability to Do Work-Related Activities (Mental)), taken on its own would be
grounds for a determination of disability, but that this opinion was unsupported by the record,

including Dr. Teague's previous examinations. Tr. 17. Several of Dr. Teague's examinations

indicated that Plaintiff was of normal mood with no acute distress. Tr. 399, 404, 407, 413, 414,
417, 422. These examinations are inconsistent and do not support the determination that Dr.

Teague later made in his February 18, 2011 opinion (Medical Opinion RE: Ability to Do Work-

Related Activities (Mental)) in which he stated that Plaintiff is unable to work. Tr. 17.

2

Plaintiff does not present the award of benefits or cause for remand as a separate issue
but rather brings it forth in his relief sought.

10

Plaintiff asserts that the Family Practice Center records of Dr. Teague' s examination
reference his severe depression, panic attacks, anxiety, and suicidal ideations. Pl.'s Br. at 6.
However, Dr. Teague indicated that panic attacks were not present as of July 12, 2010. Tr. 413.
The reports that indicated the presence of the panic attacks were from examinations prior to the

one conducted on that day. Tr. 414, 417, 422, 427. Although Gwen Waddle RNC, FNP notes on
July 12, 2010 that Plaintiff is a suicide risk, Dr. Teague's examinations on the same date and on
August 2, 2010 state that Plaintiff does not possess suicidal ideations. Tr. 407, 413, 460. The
AU recognized

Plaintiffs depression but determined that the objective evidence does not reflect

that the depression would make him unable to perform routine work. Tr. 17.

Plaintiff claims that the AU neglects to mention Dr. Frensley' s finding that Plaintiff has
a Global Assessment of Functioning (GAF) score of 48, and the fact that she listed "inability to

maintain employment" under Axis IV of her examination. P1.'s Br. at 7. "Federal courts have
declined to find a link between an individual's GAF score and [the] inability to work." Andrews
v.

Astrue, 917 F. Supp. 2d 624, 638 (N.D. Tex. 2013) (citing 65 Fed. Reg. 50746, 50764-65

(Aug. 21, 2000)) (declining to endorse the GAF scale for use in Social Security and SSI

disability programs and stating that the GAF scale "does not have a direct correlation to the
severity requirements in our mental disorders listings"). Additionally, the examination does not
identify that Plaintiff is unable to work under Axis IV, but rather that his inability to sustain
employment is one of the psychosocial stressors that impact him. Tr. 308. Axis IV deals with life
stressors that impact the plaintiffs mental conditions. Molaison

v.

United States, No. CIV. A.

93-478, 1994 WL 236322 (E.D. La. May 20, 1994), affd, 51 F.3d 1042 (5th Cir. 1995).

11

Plaintiff further alleges that according to SSR 96-6P, the AU should not have ignored
any medical source opinions or legal conclusions. Pl.'s Br. at 7. The AU did not ignore any of

the medical source opinions, but rather looked at and weighed all of the objective evidence in the
record. Tr. 17. The weight given to opinions depends on the degree to which evidence supports

that opinion considering assessments from other treating and examining sources. 20 C.F.R.

§

404.1 527(c)(ii)(3). Dr. Frensley' s consultative psychological examination indicated that

Plaintiff's thoughts were logical and goal oriented, his concentration and ability to carry out
instructions was unimpaired, and that he is capable of abstract thought.

Tr.

307-309. She also

indicated Plaintiff's social judgment was grossly intact, he possessed a fund of knowledge above

average, and that his remote memory was intact.

Tr.

308. An examination by Central Texas

Neurological Association supports this assessment by indicating that Plaintiff displayed normal

behavior, affect and mood, and was capable of well-organized thoughts.

Tr.

380. If there are any

inconsistencies between evidence in the record, including medical opinions, the AU will weigh
all the other evidence and see whether she can decide if the claimant is disabled.

Greenspan,

38

F.3d at 237. The AU determined that Dr. Teague's assessment was not supported by the
evidence and attributed little weight to it.

Tr.

17.

If there is good cause shown that the

physician's opinion is brief and conclusory, lacks persuasive weight, or is unsupported by the
evidence, the Court can afford it little weight. Scott, 770 F.2d at 485.

Plaintiff also claims that under SSR 96-5P, 20 C.F.R. §404.1512(e)(1), and 20 C.F.R.
§416.91 2(e)( 1) the AU should have made every reasonable effort to re-contact the source of the

medical opinion since she found that the treating source assessment was not supported by the
evidence. Pl.'s Br. at 7. Fifth Circuit case law indicates that the AU is under no obligation to re-

12

contact a treating physician when that physician's opinion is inconsistent with other substantial
evidence in the record. Alejandro

v.

Barnhart, 291 F. Supp. 2d 497, 513 (S.D. Tex. 2003). The

AU found that Dr. Teague's assessment was not supported by all the other evidence in the

record and was therefore not required to re-contact Dr. Teague. Tr. 17.

Plaintiff further alleges that the AU's decision to give little weight to Dr. Christopher
Teague's medical opinion without considering all of the six factors set forth in 20 C.F.R.

§

404.1527, 4 16.927 constitutes an error. Pl.'s Br. at 5-6. The AU considered the opinions from
the Family Medical Center, Neurology Associates of Fort Worth, Dr. Can, and Dr. Frensley in

making her decision. Tr. 15-18. The AU should seek clarification or additional evidence if there
is no other medical opinion evidence. Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000). The

Fifth Circuit characterized Newton as merely "requiring, in the absence of competing first-hand

medical evidence, that the AU consider each of the

§

404.1527(d) factors in evaluating the

medical opinion of a treating physician." Alejandro

v.

Barnhart, 291 F. Supp. 2d 497, 510 (S.D.

Tex. 2003) (citing Frank v. Barnhart, 326 F.3d 618, 620 (5th Cir. 2003)). Since there is first-

hand medical evidence available to the AU, the AU was not required to perform a detailed
analysis of the six factors in 20 C.F.R. §404.1527(d), 416.927(d).
B. Plaintiff's Claim That the AU's Evaluation of the Claimant's Residual Functional
Capacity is Not Supported by Substantial Evidence.

Plaintiff alleges that the AU implicitly rejected Dr. Teague' s, Dr. Blame Can's, and Dr.
Kelvin Samaratunga's findings when determining Plaintiffs RFC. P1's Br. at 9. The AU found

that Plaintiff has the RFC to perform light work, with the ability to occasionally perform
dexterous tasks with his fingers. Tr. 14. The AU further concluded that Plaintiff retains the

ability to perform simple routine work but should avoid work hazards, work indoors near a

13

bathroom facility, and be limited to incidental contact with others. Tr. 14. Although the AU
decided to give Dr. Teague's unsupported assessment little weight, she did consider prior

examinations conducted by Dr. Teague at the Family Diagnostic Medical Center in determining

Plaintiff's RFC. Tr. 15-17. In these visits, Plaintiff was described as being in a normal mood with
no acute distress. Tr. 16. Ultimately, the AU did not find that Dr. Teague's opinions were

conclusive due to the presence in the record of other competing medical opinions and "because
[they were] not supported by the objective evidence discussed throughout [her] decision." Tr. 17.
Dr. Can's evaluation of Plaintiff's RFC states that Plaintiff "can understand, remember,

and carry out detailed but not complex instructions, make decisions, attend and concentrate for

extended periods, accept instructions, and respond appropriately to changes in routine work
settings." Tr. 336. Dr. Can marked Plaintiff as moderately limited in only 6 out of the 20 items
with the rest of the mental RFC assessment indicating that Plaintiff is not significantly limited.
Tr. 334-35. The items checked as moderately limited include plaintiff's ability to understand,

remember, and carry out detailed instructions, his ability to work in cooperation and proximity
with others, and his ability to interact appropriately with the general public. Tr. 334-3 5. The

AU's determination that Plaintiff can perform simple routine work but that he should be limited
to incidental contact with others is consistent with Dr. Can's mental RFC assessment. Tr. 14,
336.
Dr. Samaratunga's physical RFC assessment indicates that Plaintiff's fine manipulation

(fingering) is limited and attributed him with a medium physical exertion requirement. Tr. 329
Dr. Samaratunga assessed Plaintiff as being able to occasionally lift up to 50 pounds with

frequent lifting of 25 pounds, standing/walking of about 6 hours, and unlimited pulling/pushing

14

of arm/leg controls.

Tr. 327. Dr. Samaratunga did not note any other postural, manipulative,

visual, communicative, or environmental limitations. Tr. 328-31. "If someone can do medium
work, we determine that he or she can also do sedentary and light work." 20 C.F.R.

404.1567(c). The

§

AU's determination that Plaintiff can perform light work is consistent with Dr.

Samaratunga' s physical RFC assessment.

Plaintiff contends that the AU based the RFC on her own medical expertise thereby
"playing doctor." P1's Br. at 10. The

AU's determination is not only consistent with the

assessment of Dr. Carr and Dr. Samaratunga, but is also supported by Dr. Blair's, Dr. Little's,
and Dr. Frensley's assessments. Tr. 287, 292, 302, 309, 323, 380. Dr. Blair stated that Plaintiff

had a moderate intentional tremor of both hands, but that this benign essential tremor is not a
condition that would prevent him from working. Tr. 287, 290. He stated Plaintiff's mental status
as alert and well oriented, with intact intellect and memory. Tr. 287. Dr. Blair determined that

other than the benign essential tremor, the remainder of the neurological examination was within
normal limits in regards to Plaintiffs age. Tr. 289. Dr. Little reported that the action tremor on

the left and right hands were mild and that Plaintiff possessed no limitation of his range of
motion in his back or his joints. Tr. 301. He also reported that Plaintiffs mental status is normal,
his fund of knowledge adequate, and his thoughts well organized. Tr. 30 1-02. Dr. Frensley

determined that Plaintiffs comprehension and ability to carry out instructions is not impaired,
but that his ability to interact effectively with peers and coworkers is affected by his condition.
Tr. 309. The doctors' medical assessments constitute substantial evidence within the record.

Therefore, the

AU' s determination that that Plaintiff has the RFC to perform light work (with

15

some modifications), including "cleaner housekeeping," "binding machine [operator]," and "coin

machine collector," is based on substantial evidence in the record. Tr. 18-19.

Plaintiff further alleges that the AU did not include a function-by-function assessment of
each of the work-related mental activities that are relevant under SSR 96-8p since she did not

adopt the findings of the consultative exam report. P1's Br. at 9-10. SSR 96-8p requires the
analysis of the following four work-related mental activities: (1) understanding, remembering,
and carrying out instructions; (2) using judgment in work decisions; (3) responding appropriately
to supervision and peers, and (4) dealing with changes in a routine setting. Titles II & Xvi:

Assessing Residual Functional Capacity in Initial Claims, SSR 96-8P (S.S.A. July 2, 1996).
However, SSR 96-8p does not require an exhaustive discussion of each work-related mental

activity as long as they are considered in the

AU's analysis. See

Walton v. Astrue, No. 10-8 15,

2011 WL 195975, at 9-10 (N.D. Tex. Jan. 20, 2011). Here, the AU satisfied this requirement by

basing her opinion on Dr. Can's mental RFC assessment which contains a function-by-function
analysis. Tr. 17, 334. The mental RFC assessment performed by Dr. Can analyzed Plaintiff's:
(1) understanding and memory; (2) sustained concentration and persistence; (3) social

interaction; and (4) adaptation. Tr. 334-35. Therefore, the AU complied with SSR 96-8p by

basing her decision on the evidence within the record. Id.
C. Plaintiff's Request for Remand and Granting of Benefits

Plaintiff, citing 42 U.S.C.A.

§

405(g), requests that this case be remanded with an order

to award benefits in accordance with a ruling on his behalf. P1's Br. at 10. Although the "[C]ourt

shall have power to enter.

. .

modifly]

. . .

or revers [e] the decision of the Commissioner of

Social Security, with or without remanding the cause for a rehearing," under Mc Queen

Iri

v.

Apfel,

courts may only remand with an instruction to make an award if the record definitively shows

that the claimant is entitled to benefits and that the AU's opinion is unsupported by substantial
evidence. McQueen

v.

Apfel, 168 F.3d 152, 157 (5th Cir. 1999); 42 U.S.C.A. § 405(g) (West).

Here, the record shows that the AU's decision is supported by substantial evidence and

that Plaintiff has failed to present any evidence entitling him to an award of benefits. Therefore,

Plaintiff has not demonstrated that he is entitled to remand of the Commissioner's decision with
an order to grant the benefits sought. Thus remand is inappropriate.

VI. RECOMMENDATION
Based on the foregoing discussion, the Court recommends that the final decision of the
Commissioner be AFFIRMED. The parties may wish to file objections to this Report and
Recommendation. A party filing objections must specifically identify those findings or

recommendations to which objections are being made. The District Court need not consider
frivolous, conclusive, or general objections. See Battle

v.

US. Parole Comm 'n, 834 F.2d 419,

421 (SthCir. 1987).

A party's failure to file written objections to the proposed findings and recommendations

contained in this Report within fourteen (14) days after the party is served with a copy of the
Report shall bar that party from de novo review by the District Court of the proposed findings

and reconmiendations in the Report and, except upon grounds of plain error, shall bar the party
from appellate review of unobjected-to proposed factual findings and legal conclusions accepted

by the District Court. See 28 U.S.C.

§

636(b)(1)(C); Thomas v. Am, 474 U.S. 140, 150-53

(1985); Douglass v. United ServicesAuto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en bane). To the

extent that a party has not been electronically served by the Clerk with this Report and

Recommendation pursuant to the CM/ECF procedures of this District, the Clerk is directed to

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send such party a copy of this Report and Recommendation by a national overnight delivery
service having confirmatiof pickup and delivery.

SIGNED thiy!day of June, 2015.

WFF&EY C. MANSKE
U.S. MAGISTRATE JUDGE

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