IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

SAN ANGELO DIVISION

§

MELINDA J. ALDEN, §

§

 Plaintiff, §

§

vs. § Civil Action No. 6:04-CV-027-C

§

§

JO ANNE B. BARNHART, §

Commissioner of Social Security, §

§

 Defendant. §

REPORT AND RECOMMENDATION

THIS MATTER is before the court upon Plaintiff’s complaint filed April 22, 2004, for

judicial review of the administrative decision of the Commissioner of Social Security denying

Plaintiff’s application for supplemental security income benefits under Title XVI of the Social

Security Act. Plaintiff filed a brief in support of her complaint on January 11, 2005, Defendant filed

her brief on February 10, 2005, and Plaintiff filed her reply on March 14, 2005. The United States

District Judge, pursuant to 28 U.S.C. § 636(b), referred this matter to the United States Magistrate

Judge for report and recommendation, proposed findings of fact and conclusions of law, and a

proposed judgment. This court, having considered the pleadings, the briefs, and the administrative

record, recommends that the United States District Judge affirm the Commissioner’s decision and

dismiss the Complaint with prejudice.

I. STATEMENT OF THE CASE

Plaintiff filed an application for supplemental security income benefits on June 21, 1999,

with a protective filing date of February 23, 1999, alleging disability beginning July 4, 1989. Tr.

 

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13, 47. Plaintiff’s application was denied initially and upon reconsideration. Tr. 13, 62-67, 70-72.

Plaintiff filed a Request for Hearing by Administrative Law Judge on March 9, 2000, and this matter

came for hearing before the Administrative Law Judge (“ALJ”) on October 19, 2000. Tr. 73-74,

487-503. Plaintiff, represented by a non-attorney, testified in her own behalf. Tr. 491-96. Carol

Bennett, a vocational expert (“VE”), appeared and testified as well. Tr. 496-502. The ALJ issued

a decision unfavorable to Plaintiff on December 20, 2000. Tr. 45-56. 

In his opinion the ALJ noted that the specific issue was whether Plaintiff was under a

disability within the meaning of the Social Security Act. Tr. 47. He found that an earlier

determination on February 10, 1993, was binding under the doctrine of res judicata and further

found no basis for reopening the prior application filed on June 29, 1992. Id. The ALJ’s decision

therefore refers to the period from February 23, 1999, the protective filing date, through December

20, 2000, the date of his decision. Id.

 The ALJ found that Plaintiff has “severe” impairments, including status post spina bifida,

scoliosis of the thoracic spine, status post back injury with sequelae of low back and right leg pain,

sacroiliac joint pain, status post laminectomy, and panic disorder with agoraphobia. Tr. 49, 54. He

further found that Plaintiff’s severe impairments, singularly or in combination, were not severe

enough to meet or equal in severity any impairment listed in the Listing of Impairments, 20 C.F.R.

Part 404, Subpt. P, App. 1. Id. The ALJ noted that he had given special consideration to sections

1.05, 12.04, and 12.06 of the Listing of Impairments. Tr. 49. Therefore, the ALJ was required to

determine whether Plaintiff retained the residual functional capacity (“RFC”) to perform her past

relevant work or other work existing in the national economy. Tr. 49-54.

The ALJ noted that RFC is an assessment of an individual’s ability to do sustained workrelated physical and mental activities in a work setting on a regular and continuing basis. Tr. 51.

He found that Plaintiff retained the RFC to perform work at the light exertional level. Id. He further

 

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found that Plaintiff had no restrictions of activities of daily living, demonstrated by her ability to

care for her personal needs, cook, and clean house; had moderate difficulties in maintaining social

functioning as shown by her agoraphobia; had moderate deficiencies of concentration, persistence,

or pace, resulting in failure to complete tasks in a timely manner; and had no episodes of

decompensation. Id. The ALJ found that Plaintiff’s ability to perform work at the light exertional

level that was limited to jobs involving only occasional stooping and crouching, simple and routine

instructions, and only incidental contact with the public should accommodate her back impairments,

her hip pain, and her mental impairments. Id.

The ALJ further found that Plaintiff’s allegations of totally disabling pain of the lower back

and her descriptions of her limitations were not fully credible or consistent with the record. Tr. 52.

He specifically noted that the pain experienced by Plaintiff was limiting but was not severe enough

to preclude all types of work. Id. The ALJ also noted that Plaintiff’s activities of daily living did

not reflect one who was markedly limited because of her back pain or mental impairments and

further noted that Plaintiff’s weak work record indicated that she was poorly motivated to work. Id.

The ALJ found that Plaintiff has past relevant work as a convenience store clerk, deli clerk,

and preparation cook. Tr. 53. He found that Plaintiff retained the RFC to return to her past relevant

work as a preparation cook, relying upon the testimony of the VE, who indicated that such work was

light and unskilled as generally performed in the national economy. Id. Therefore, the ALJ found

that Plaintiff was not disabled at any time through the date of his decision.

 In the alternative, the ALJ found that if Plaintiff was unable to return to her past relevant

work as a preparation cook, it would be necessary to determine whether Plaintiff was capable of

making a vocational adjustment to other work despite her severe impairments. Tr. 53-55. The ALJ

relied upon the testimony of the VE who indicated that a hypothetical person of Plaintiff’s age, with

Plaintiff’s RFC and vocational history, could perform work which exists in the national economy,

 

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including the jobs of assembly worker described as unskilled light work, with 7,000 jobs in Texas

and 112,000 nationally; and assembly worker described as unskilled sedentary work, with 4,500 jobs

in Texas and 80,000 jobs nationally. Id. The ALJ, therefore, concluded that Plaintiff was not

disabled within the meaning of the Social Security Act at any time through the date of his decision.

Tr. 54, 55. 

Plaintiff submitted a Request for Review of Hearing Decision/Order on February 28, 2001,

which was not filed on time. Tr. 88-91. Plaintiff also filed a new claim on April 13, 2001. Tr. 60.

On July 24, 2003, the Appeals Council vacated its prior action dismissing the request for review

because it determined that the request was, in fact, timely filed, consolidated the two claims, and

remanded this matter to the ALJ for further development. Tr. 59-61.

A second hearing was held on September 10, 2003. Tr. 504-36. Plaintiff, again represented

by a non-attorney, testified in her own behalf. Tr. 507-24. A witness, Frank Stewart, also appeared

and testified. Tr. 524-31. Carol Bennett, a vocational expert (“VE”), appeared and testified as well.

Tr. 531-35. The ALJ issued a decision unfavorable to Plaintiff on October 30, 2003. Tr. 10-22.

In his opinion the ALJ noted that the decision addressed Plaintiff’s consolidated applications.

Tr. 13. He noted that although Plaintiff alleged disability onset as of July 4, 1989, the issue for SSI

purposes is whether she was under a disability as of, or subsequent to, her protective filing date of

February 23, 1999. Tr. 14.

The ALJ found that Plaintiff had not engaged in substantial gainful activity since

February 23, 1999. Tr. 14. He found that she had severe impairments, including degenerative disk

disease in the lumbar spine with radiculopathy, thoracic spina bifida with scoliosis, and a panic

disorder with agoraphobia. Tr. 15. He found that these impairments were not severe enough to meet

or equal in severity any impairment listed in the Listing of Impairments, 20 C.F.R. Part 404, Subpt.

 

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P, App. 1. Id. The ALJ also noted that Plaintiff sustained a fractured left clavicle in November

2001, which he found was not severe under the applicable regulations. Id.

The ALJ thereafter turned to the RFC assessment. He found that Plaintiff retained the RFC

to perform light work activity, limited to work that allows for the option of sitting or standing while

performing work duties; that does not require any crawling, climbing ladders or scaffolds; that only

involves occasional crouching, stooping, or kneeling; and that involves no more than simple

repetitive tasks with no more than incidental contact with the public. Tr. 18. The ALJ discussed

Plaintiff’s medical history and found that her statements concerning her impairments and their

impact on her ability to work were not entirely credible in light of the medical evidence. Id. He

found that her mental impairments imposed mild restrictions in accomplishing daily living activities;

moderate difficulty in maintaining social functioning; and mild difficulty in maintaining pace and

concentration; and he noted no record of any episodes of decompensation in work-like settings. Id.

He further found that Plaintiff has physically experienced a general diminishment of physical

capability due to her back impairments and associated pain. Tr. 18. The ALJ found that Plaintiff’s

physical and mental impairments were not incompatible with the performance of certain levels of

sustained work activity. Id.

The ALJ concluded that Plaintiff is not able to return to any of her past relevant work. Tr.

19, 20. Relying on the testimony of the VE, the ALJ found that Plaintiff could perform work which

exists in the national economy, including the jobs of small parts assembler, with 8,000 jobs in Texas

and 141,000 nationally; hand packer, with 5,000 jobs in Texas and 203,000 nationally; and

grader/sorter, with 3,000 jobs in Texas and 65,000 jobs nationally. Id. The ALJ, therefore,

concluded that Plaintiff was not disabled within the meaning of the Social Security Act at any time

through the date of his decision. Tr. 20, 21. 

 

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On April 22, 2004, Plaintiff commenced this action which seeks judicial review of the

Commissioner’s decision that Plaintiff was not disabled.

II. STANDARD OF REVIEW

An individual may obtain a review of the final decision of the Commissioner by a United

States District Court. 42 U.S.C. § 405(g). The court’s review of a denial of disability benefits is

limited to determining whether the decision is supported by substantial evidence and whether the

Commissioner applied the proper legal standards. Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir.

2002)(citing Estate of Morris v. Shalala, 207 F.3d 744, 745 (5th Cir. 2000)). Substantial evidence

“is more than a mere scintilla and less than a preponderance” and includes “such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.” Masterson v. Barnhart, 309

F.3d 267, 272 (5th Cir. 2002); Watson v. Barnhart, 288 F.3d 212, 215 (5th Cir. 2002). The court

will not re-weigh the evidence, try the questions de novo, or substitute its judgment for the

Commissioner’s, even if the court believes that the evidence weighs against the Commissioner's

decision. Masterson, 309 F.3d at 272. "[C]onflicts in the evidence are for the Commissioner and not

the courts to resolve." Id. (quoting Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000)).

 In order to qualify for disability insurance benefits or supplemental security income, a

claimant has the burden of proving that he or she has a medically determinable physical or mental

impairment lasting at least 12 months that prevents the claimant from engaging in substantial gainful

activity. Substantial gainful activity is defined as work activity involving significant physical or

mental abilities for pay or profit. Newton, 209 F.3d at 452. See 42 U.S.C. § 423(d)(1)(A); 20 C.F.R.

§ 404.1527(a)(1).

The Commissioner follows a five-step process for determining whether a claimant is disabled

within the meaning of the Social Security Act. 20 C.F.R. § 404.1520; Masterson, 309 F.3d at 271;

 

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Newton, 209 F.3d at 453. In this case, the ALJ found at step 5 that Plaintiff was not disabled

because she retained the ability to perform work in the national economy. Tr. 20, 21.

III. DISCUSSION

Plaintiff claims that the ALJ’s RFC assessment is not supported by substantial evidence.

Plaintiff argues that the ALJ erred in evaluating her mental impairments and RFC by failing to

appropriately consider the opinions of the state agency medical consultants (“SAMCs”), Plaintiff’s

treating psychiatrist, and the psychiatric consultative examiner (“CE”) and by failing to incorporate

the limitations noted by these physicians into his RFC assessment.

A. Whether the ALJ’s erred by failing to appropriately consider the opinions of the

SAMCs.

Plaintiff argues that the ALJ’s RFC assessment is not supported by the opinions of the

SAMCs. She notes that the SAMCs completed mental residual functional capacity assessment forms

which indicated that Plaintiff was impaired in following detailed instructions and interacting with

the public. 

The ALJ found that Plaintiff could perform no more than simple tasks and could have no

more than incidental contact with the public. Plaintiff argues that this mental RFC finding does not

reflect the limitations noted by the SAMCs, particularly in terms of contact with coworkers.

The ultimate issue is whether the ALJ’s decision is supported by substantial evidence. The

court, therefore, must review the record to determine whether it “yields such evidence as would

allow a reasonable mind to accept the conclusion reached by the ALJ.” Loza v. Apfel, 219 F.3d 378,

393 (5th Cir. 2000).

The record demonstrates that Dr. A. Boulos, one of the SAMCs, completed a psychiatric

review technique form which indicated by checkmark that an RFC assessment was necessary, based

on affective disorders and anxiety-related disorders. Tr. 435-48. The degree of resulting functional

 

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limitations was also noted by checkmark. Tr. 445. Dr. Boulos indicated that under the part “b”

criteria, Plaintiff was mildly restricted in her activities of daily living, moderately limited in

maintaining social functioning, moderately limited in maintaining concentration, persistence, or

pace, and had no episodes of decompensation. Tr. 459. He completed a mental residual functional

capacity assessment form which indicated by checkmark the degree of various limitations caused

by Plaintiff’s mental impairments in more detail. Tr. 463-66. He opined that Plaintiff was

moderately limited in several areas, including the ability to understand, remember, and carry out

detailed instructions; the ability to maintain attention and concentration for extended periods; the

ability to interact appropriately with the general public; and the ability to get along with coworkers,

accept instructions, and respond appropriately to supervisors. Id. Dr. Boulos explained his opinion

more fully by noting that the “claimant retains the abilities to understand and carry out simple

instructions, to interact with coworkers and supervisors, and to adapt to routine challenges in the

work setting.” Tr. 465.

Dr. Jim L. Cox, in completing the mental residual functional capacity assessment form,

indicated that Plaintiff was moderately limited in several areas, including some of the same

limitations noted by Dr. Boulos as well as the ability to perform activities within a schedule and

maintain regular attendance; the ability to work in coordination with or proximity to others without

being distracted by them; the ability to complete a normal workday and workweek without

interruptions; the ability to respond appropriately to changes in the work setting; and the ability to

set realistic goals or make plans independently of others. Tr. 466-68. Dr. Cox opined, after

completing the summary conclusions, that “claimant is capable of performing unskilled tasks, of

relating appropriately to supervisors and coworkers, and of responding appropriately to changes in

the routine workplace.” Tr. 469.

 

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Dr. Stephen D. Drake, another SAMC, completed a mental residual functional capacity

assessment form on October 26, 1999. Tr. 225-27. Dr. Drake indicated under the summary

conclusions that Plaintiff was moderately limited in the ability to remember and understand detailed

instructions; to carry out detailed instructions; to maintain attention and concentration for extended

periods; to work in coordination with or in proximity to others without being distracted by them; to

complete a normal workday and workweek without interruptions from psychologically based

symptoms; to interact with the general public; to get along with coworkers; to respond appropriately

to changes in the work setting; to travel in unfamiliar places or use public transportation; and to set

realist goals or make plans independently of others. Tr. 225-26. Dr. Drake explained his findings,

opining that “claimant retains the ability to understand and follow simple instructions, to adequately

interact with coworkers and supervisors, and to adapt to limited routine work environments with

limited social interaction.” Tr. 227. Dr. Medhi Sharifian indicated his agreement with Dr. Drake’s

assessment. Id.

Plaintiff correctly notes that the SAMCs all indicated in their summary conclusions that

Plaintiff’s ability to follow detailed instructions and interact with the general public was impaired.

Pl. Brief at 12. This is consistent with the ALJ’s finding that Plaintiff can perform “no more than

simple repetitive tasks” and have “no more than incidental contact with the public.” Tr. 18. Plaintiff

argues that the ALJ erred by failing to include a limitation on maintaining concentration and

attention for extended periods or on interacting with coworkers in this mental RFC assessment,

noting that the SAMCs all indicated such impairment in their summary conclusions on the mental

residual functional capacity assessment forms.

Pursuant to Soc. Sec. Ruling 96-6p (July 2, 1996)(“SSR 96-6p”), the findings of fact made

by SAMCs regarding the nature and severity of an individual's impairment “must be treated as

expert opinion evidence of nonexamining sources” by the ALJ. SSR 96-6p. The ALJ is “not bound

 

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by findings made by State agency or other program physicians and psychologists, but [he] may not

ignore these opinions and must explain the weight given to the opinions in their decisions.” Id.

However, the opinions of SAMCs “can be given weight only insofar as they are supported by

evidence in the case record.”

In his decision the ALJ noted that he had reviewed the initial and reconsideration

determinations of the SAMCs. Tr. 20. He indicated his consideration of such opinions under SSR

96-6p. Id. He indicated his finding of limitations under the part “b” criteria, including mild

restriction in the activities of daily living; moderate difficulties in social functioning; mild

deficiencies of concentration, persistence, or pace; and no episodes of decompensation. Tr.18. He

noted that he found the opinions of the SAMC “significantly persuasive” and accorded them

“substantial probative weight.” Tr. 20. The ALJ concluded that Plaintiff’s physical and mental

impairments limited her to work at the light exertional level which allowed for sitting or standing

while performing work duties; did not require any crawling, climbing of ladders or scaffolds;

involved only occasional crouching, stooping, or kneeling; and involved no more than simple,

repetitive tasks with no more than incidental contact with the public. Id.

Plaintiff argues that the ALJ did not effectively grant “substantial probative weight” to the

opinions of the SAMCs because he failed to incorporate limitations on maintaining attention and

concentration and on interacting with coworkers in his mental RFC finding. However, despite

indicating by checkmark that Plaintiff was limited in these areas, Dr. Boulos opined that “claimant

retains the abilities to understand and carry out simple instructions, to interact with coworkers and

supervisors, and to adapt to routine challenges in the work setting.” Tr. 465. Dr. Drake, with Dr.

Sharifian in agreement, opined that “claimant retains the ability to understand and follow simple

instructions, to adequately interact with coworkers and supervisors, and to adapt to limited routine

work environments with limited social interaction.” Tr. 227. Dr. Cox opined that “claimant is

 

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capable of performing unskilled tasks, of relating appropriately to supervisors and coworkers, and

of responding appropriately to changes in the routine workplace.” Tr. 469. Each of these SAMCs

opined that Plaintiff could understand and carry out simple instructions (or, according to Dr. Cox,

perform unskilled tasks) and could interact with coworkers and supervisors. These opinions are

consistent with the ALJ’s determination that Plaintiff’s mental impairment limited her RFC to

simple, repetitive tasks with no more than incidental contact with the public. Tr. 20. 

Plaintiff argues that the ALJ should have provided an explanation for failing to give

appropriate weight to the opinions of the SAMCs, applying the factors set forth in 20 C.F.R.

§ 416.927(d). SSR 96-6p provides that although the ALJ is responsible for assessing an individual’s

RFC, he “must consider and evaluate any assessment of the individual’s RFC by a State agency

medical or psychological consultant . . . . as medical opinions from nonexamining sources about

what the individual can still do despite his or her impairment(s).” SSR 96-6p. 20 C.F.R.

§ 416.927(f) indicates that the ALJ must explain in the decision the weight given to the opinions of

a SAMC. See 20 C.F.R. 416.927(d). 

It is, of course, the ALJ’s responsibility to determine a claimant’s RFC, and such an

assessment is not a medical opinion. See 20 C.F.R. §§ 416.946, 416.927(e). The ALJ indicated in

his opinion that he had accorded substantial probative weight to the opinions of the SAMCs. The

mental RFC finding, while not precisely reflecting the individual limitations noted by the SAMCs,

was in fact consistent with the opinions of these consultants indicating that Plaintiff retained the

ability to understand and carry out simple instructions and maintained the ability to appropriately

interact with coworkers. The ALJ found that Plaintiff was moderately limited in concentration

persistence, or pace, evaluating her mental impairments under the part “b” criteria, but further

indicated that the limitation to simple, repetitive work with no more than incidental contact with the

public accommodated the limitations imposed by Plaintiff’s mental impairments. 

 

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The ALJ considered the medical opinions of the state agency medical consultants in making

his RFC determination, pursuant to SSR 96-6p. Tr. 20. The ALJ is not required to incorporate any

specific limitations into his RFC assessment simply because it appears in a medical opinion. Rather,

the ALJ has the sole responsibility for weighing the evidence, may choose whichever physician’s

diagnosis is most supported by the record, and may incorporate into the RFC assessment the

limitations supported by that diagnosis or diagnoses. See Muse v. Sullivan, 925 F.2d 785, 790 (5th

Cir. 1991). The ALJ also has the responsibility to resolve questions of credibility and questions

arising from conflicting medical opinions. Masterson, 309 F.3d at 272. Defendant argues that the

ALJ inherently applied the requirements of 20 C.F.R. § 416.927(f) and accorded such opinions

weight insofar as they are supported by evidence in the record. The record demonstrates that the

summary conclusions, indicated by checkmark, were, perhaps, not entirely congruent with the

opinions expressed by the consultants as to the abilities of Plaintiff despite her mental impairments.

However, the record demonstrates that the ALJ’s mental RFC assessment does not conflict with the

opinions of the consultants that are included in the assessment in narrative form. In this matter, I

find that the ALJ appropriately considered the opinions of the SAMC in making his RFC

assessment. 

B. Whether the ALJ erred by failing to appropriately consider the opinions of Plaintiff’s

treating psychiatrist in making his RFC assessment.

Plaintiff further argues that the mental RFC assessment of the ALJ is not supported by the

opinion of Dr. Jim Mercer, Plaintiff’s treating psychiatrist. Plaintiff notes that Dr. Mercer completed

two medical source statements about Plaintiff’s mental capabilities to perform work, in October

2000 and in September 2002.

 

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1 The axial system of evaluation enables the clinician to comprehensively and

systematically evaluate a client. See generally, American Psychiatric Assoc., Diagnostic and

Statistical Manual of Mental Disorders (4th ed. 1994) at 25-30. An Axis I diagnosis is used to

report all clinical disorders except for personality disorders and mental retardation, which are

reported on Axis II. Id. at 27-28. 

2 The GAF score on Axis V is for reporting the client’s “psychological, social, and

occupational functioning.” See American Psychiatric Assoc., Diagnostic and Statistical Manual of

Mental Disorders (4th ed. 1994) at 32. This report of overall functioning is noted to be “useful in

planning treatment and measuring its impact, and in predicting outcome.” Id.

3 A GAF score of 41-50 indicates “serious symptoms” such as suicidal ideation, or any

“serious impairment in social, occupation, or school functioning,” such as inability to keep a job or

having no friends. American Psychiatric Assoc., Diagnostic and Statistical Manual of Mental

Disorders (4th ed. 1994) at 32.

4 The DSM-IV defines a GAF of 61-70 as some mild symptoms (e.g., depressed mood

and mild insomnia) or some difficulty in social, occupational, or school functioning, but generally

functioning pretty well. American Psychiatric Assoc., Diagnostic and Statistical Manual of Mental

Disorders (4th ed. 1994) at 32.

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In a Mental Impairment Questionnaire completed on October 18, 2000, Dr. Mercer noted that

Plaintiff’s symptoms included sleep disturbance, mood disturbance, emotional lability, social

withdrawal or isolation, recurrent panic attacks, anhedonia, psychomotor agitation or retardation;

feelings of worthlessness, decreased energy, and generalized persistent anxiety. Tr. 244-48. Dr.

Mercer noted that he had treated Plaintiff since May 1, 1998, for a total of 17 visits. Tr. 244. He

opined that Plaintiff’s diagnosis included panic disorder with agoraphobia; major depression, severe,

recurrent; and social phobia on Axis I.1 Id. He indicated that Plaintiff’s current Global Assessment

of Functioning (“GAF”) score2 was 45,3 with a GAF as high as 654 in the previous year. Id. In

describing his clinical findings, Dr. Mercer noted that Plaintiff “has had severe panic attacks [with]

g.i. distress,” has had severe depression, and has ongoing anxiety. Tr. 245. He indicated that

Plaintiff would be absent from work “more than three times a month,” noting that she “still has

frequent panic attacks.” Tr. 247. He also opined that Plaintiff was markedly limited in all of the

four areas under the part “b” criteria. Tr. 247-48.

 

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5 The DSM-IV defines a GAF of 51-60 as moderate symptoms (e.g. flat effect,

circumstantial speech, and occasional panic attacks) or moderate difficulty in social, occupational,

or school functioning (e.g. few friends, conflicts with peers or co-workers). American Psychiatric

Assoc., Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) at 32.

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In the second Mental Impairment Questionnaire that he completed on September 30, 2002,

Dr. Mercer indicated that Plaintiff’s current GAF was 50,5

 with 55 as her highest GAF score in the

previous year. Tr. 253. He indicated by checkmark that Plaintiff was unable to meet competitive

standards with regard to remembering work-like proceedings, understanding very short and simple

instructions, understanding and remembering detailed instructions, and carrying out detailed

instructions. Tr. 254-55. He indicated that Plaintiff had “no useful ability to function” in setting

realistic goals or making plans independently of others, in dealing with the stress of semiskilled and

skilled work, in interacting appropriately with the general public, in maintaining socially appropriate

behavior, in traveling to an unfamiliar place, and in using public transportation. Tr. 255. Dr. Mercer

indicated that Plaintiff was seriously limited, but not precluded, from carrying out very short and

simple instructions. Tr. 254. He indicated that Plaintiff was limited but satisfactory in adhering to

basic standards of neatness and cleanliness. Tr. 255. He also indicated that Plaintiff had a residual

disease process that resulted in such marginal adjustment that even a minimal increase in mental

demands or change in the environment would be predicted to cause her to decompensate; she had

a current history of one or more years’ inability to function outside a highly supportive living

arrangement with an indication of continued need for such an arrangement; and she had complete

inability to function independently outside the area of her home. Tr. 256. Dr. Mercer indicated that

Plaintiff was markedly or extremely limited under all of the part “b” criteria and further indicated

that Plaintiff “could not work.” Tr. 255-56.

In his opinion the ALJ noted that Plaintiff started to see Dr. Mercer for depression in 1997

and last saw him in September 2002. Tr. 16. He discussed Plaintiff’s testimony about her treatment.

 

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Id. He noted medical evidence indicating a diagnosis of panic disorder with agoraphobia in July

1999, as well as a GAF score of 55. Tr. 17. He noted that Plaintiff’s mental health treatment

providers prescribed a regimen of medications and psychotherapy, that the treatment records

indicated that her mental impairment was kept stable, and that she was able to function well enough

to carry out daily activities. Tr. 18. The ALJ noted that Plaintiff’s treating physician, Dr. Mercer,

opined that she was not able to work due to her mental impairment, and indicated that the reports

of the treating physician could not be given great weight because they are inconsistent with the

treatment records and are not based on objective clinical findings. Id. 

A treating physician’s opinion on the nature and severity of a patient’s impairment will be

given controlling weight if it “is well-supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.” 20

C.F.R. § 404.1527(d)(2). On the other hand, “[g]ood cause may permit an ALJ to discount the

weight of a treating physician relative to other experts where the treating physician's evidence is

conclusory, is unsupported by medically acceptable clinical, laboratory, or diagnostic techniques,

or is otherwise unsupported by the evidence.” Newton, 209 F.3d at 456. 

Under the applicable regulations, unless the Commissioner gives a treating source’s opinion

controlling weight, the Commissioner will consider six factors in deciding the weight to give to any

medical opinion. 20 C.F.R. § 404.1527(d). The Fifth Circuit held in Newton that “an ALJ is required

to consider each of the [six] factors before declining to give any weight to the opinions of the

claimant’s treating specialist.” Newton, 209 F.3d at 456. 

Plaintiff argues that the ALJ erred by failing to discuss and apply the factors set forth in 20

C.F.R. § 41.927(d) in discounting Dr. Mercer’s opinions. Plaintiff notes that the ALJ did not cite

this regulation, nor did he cite to the relevant Social Security Rulings or to Newton or other decisions

which pertain to the duty to weigh medical source statements from treating physicians. Plaintiff

 

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alleges that the ALJ should have given controlling weight to Dr. Mercer’s opinions, and if he did

give such weight to Dr. Mercer’s opinions, he should have applied the appropriate analysis.

First, “[a]mong the opinions by treating doctors that have no special significance are

determinations that an applicant is ‘disabled’ or ‘unable to work.’ These determinations are legal

conclusions that the regulation describes as ‘reserved to the Commissioner.’” Frank v. Barnhart,

326 F.3d 618, 620 (5th Cir. 2003)(citing 20 C.F.R. § 404.1527(e)(1)). The ALJ did not improperly

discount the opinion of Dr. Mercer insofar as he indicated that Plaintiff was “could not work” as

these determinations are reserved to the Commissioner. Id. 

The ALJ noted in his opinion that Dr. Mercer had treated Plaintiff between December 1997

and September 2002. Tr. 16. Dr. Mercer’s December 8, 1997, progress note indicates Plaintiff’s

complaints of depression and panic attacks. Tr. 211. Dr. Mercer prescribed medication. Tr. 215A.

A January 9, 1998, progress note indicates that Plaintiff felt overwhelmed at times and had panic

attacks and depression, but her medications were working, she had more energy, and her thoughts

were more organized. Tr. 209. He indicated that Plaintiff reported panic attacks twice a week in

a bad week. Id. Dr. Mercer noted on January 30, 1998, that Plaintiff reported that she had some

panic attacks and depression. Tr. 208. A progress note dated March 2, 1998, indicates that Plaintiff

was not having full blown panic attacks and school was going okay. Tr. 206-07. 

However, on April 2, 1998, Plaintiff reported that her panic attacks were worse without her

Valium, which she had not taken for a month. Tr. 204. On August 10, 1998, Dr. Mercer noted that

Plaintiff was going to have surgery and was very anxious and having panic attacks. Tr. 196-97. He

noted Plaintiff’s report that it was hard to get work and that she dreaded social events. Tr. 197. A

December 31, 1998, progress note indicated that Plaintiff had several panic attacks and was working

with friends who had a ranch, helping to care for the animals. Tr. 191. He opined that her GAF

score was 60. Tr. 190. Dr. Mercer’s progress notes indicate that on March 31, 1999, his impression

 

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6 The DSM-IV defines a GAF of 61-70 as some mild symptoms (e.g., depressed mood

and mild insomnia) or some difficulty in social, occupational, or school functioning, but generally

functioning pretty well. American Psychiatric Assoc., Diagnostic and Statistical Manual of Mental

Disorders (4th ed. 1994) at 32.

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was of an Axis I diagnosis of panic disorder; major depression, recurrent, severe; and social phobia.

Tr. 187. He opined that Plaintiff’s GAF score was 55. He noted that Plaintiff reported that she still

had some panic attacks, three to four times a month, and was doing ranch work, such as bottlefeeding calves. Tr. 188. 

Dr. Mercer noted in his progress note dated July 30, 1999, that Plaintiff reported that her life

has been going fairly well. Tr. 429. She was frustrated about finding employment but was assisting

an older lady a few times a week. Plaintiff indicated that it gets her out of the house, which helped.

Id. She was sleeping well at night and had one panic attack the previous night. Id. Dr. Mercer

opined that Plaintiff was “functioning fairly well at the present time.” Id. He indicated that her past

GAF was 55, and her current GAF was 60. Id. On October 19, 1999, Dr. Mercer noted that Plaintiff

“has been doing fairly well over all, despite the fact she quit her job” and had some panic attacks

with an incident at her job. Tr. 428. Dr. Mercer again opined that Plaintiff’s GAF score was 60.

Id. A progress note dated January 28, 2000, indicated that Plaintiff had been ill and was stressed

after her son had been in an accident. Tr. 426. Nevertheless, he noted that Plaintiff appeared calm

and cooperative and did not show any evidence of anxiety. Id. He opined that her GAF score was

65.6

 

On April 28, 2000, Dr. Mercer indicated in his treatment note that Plaintiff reported that she

had been doing well, although she had been bothered by a person who had been convicted at the

same time that she was. Tr. 425. Dr. Mercer noted that Plaintiff was calm and cooperative and did

not appear depressed, although she still has panic at times. Id. He indicated a GAF score of 65. Id.

A progress note dated December 4, 2000, notes that Plaintiff was having some good days, lists her

 

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Social Security hearing as a goal, and indicates that her GAF was 45. Tr. 419. A May 24, 2001,

progress note indicates that Plaintiff’s mother was pushing her to get a job, that Plaintiff was

continuing to try to get disability, and that her GAF was 55. Tr. 418. Dr. Mercer noted on

September 28, 2001, that Plaintiff’s mother had a bilateral knee replacement and Plaintiff has had

to do most of the shopping. Tr. 417. Plaintiff reported panicking in the store, going outside, and

then going back inside the store to finish. Id. He opined that her GAF was 65. Id. On December 28,

2001, Dr. Mercer noted that Plaintiff was in a car accident and was panicky and also noted that she

had anxiety secondary to the pain. Tr. 416. He indicated that her current GAF was 50. Id.

Plaintiff argues that Dr. Mercer’s treatment records stand in full support of his October 2000

and September 2002 statements. However, the record demonstrates that Dr. Mercer repeatedly

noted that Plaintiff was doing well, was calm and did not appear anxious despite stressful events in

her life, was getting out of the house, and was dealing with other people. See Tr. 429 (life going

fairly well, getting out of the house, one panic attack); 428 (doing fairly well overall although she

quit her job; some panic attacks); 426 (calm and cooperative, no evidence of anxiety); 425 (doing

well, did not appear depressed, still had some panic attacks). Moreover, the latter notes from Dr.

Mercer indicated that Plaintiff’s GAF score ranged from 60 to 65. Tr. 425-29. This contrasts

markedly from his October 2000 indication of Plaintiff’s GAF and functioning and even more so

from his September 2002 statement, which indicated that Plaintiff is completely unable to function

independently outside of her home and had no useful ability to function in various areas. Tr. 255-56.

However, the record further demonstrates that the ALJ did not fail to “give any weight to the

opinions of the claimant’s treating specialist.” Newton, 209 F.3d at 456 (emphasis supplied). The

ALJ limited Plaintiff’s RFC to work involving simple, repetitive tasks with no more than incidental

contact with the public. Tr. 20. The ALJ accommodated those limitations noted by Dr. Mercer

which were reflected in his own treatment notes and in the record as a whole. Plaintiff argues that

 

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the ALJ erred by failing to apply the 20 C.F.R. § 416.927(d) factors when he failed to give

controlling weight to Dr. Mercer’s opinions regarding the limitations caused by Plaintiff’s

impairments expressed in the October 2000 and September 2002 forms that he completed. The ALJ

specifically noted that Dr. Mercer was Plaintiff’s treating physician, providing her with mental

health treatment from 1997 through 2002. Tr. 16, 18. The ALJ did err in noting that Plaintiff was

first diagnosed with panic disorder with agoraphobia in July 1999, but his opinion indicates that he

considered the evidence of Plaintiff’s mental impairments before that date, and there is nothing to

demonstrate that this error was prejudicial. He discussed her treatment history, both in the context

of Plaintiff’s testimony and in discussing the other evidence in the record. He also extensively

discussed the degree to which the evidence in the record was consistent. He did not err in

determining that Dr. Mercer’s opinion as to the limiting effects of Plaintiff’s impairments was not

entitled to great weight, where these opinions were inconsistent with Dr. Mercer’s own treatment

notes and with other evidence in the record. 

I find that the ALJ did not entirely reject the opinions of Dr. Mercer but rather incorporated

into his RFC analysis those limitations most supported by Dr. Mercer’s own treatment notes which

were supported by the record. While ALJ did not specifically cite to Newton or to the relevant

Social Security Rulings or to the factors set forth 20 C.F.R. 416.927(d), I find that his opinion

demonstrates that he adequately considered these factors in weighing Dr. Mercer’s opinion.

Moreover, the ALJ specifically noted that he did not accept those opinions of Dr. Mercer indicating

that Plaintiff was unable to work insofar was they were not based on objective medical clinical

findings and were inconsistent with his treating records. I find that the ALJ did not err in

considering the opinions of Dr. Mercer, Plaintiff’s treating psychiatrist, nor did he err by failing to

adopt Dr. Mercer’s opinions on the limitations imposed by Plaintiff’s impairments where such

opinions were not consistent with Dr. Mercer’s treating records or the record as a whole.

 

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C. Whether the ALJ erred by failing to incorporate the opinion of the consultative

psychiatrist that Plaintiff should be limited to benign supervision.

Plaintiff argues that the ALJ erred by failing to include a limitation to benign supervision,

as set forth in the opinion of the consultative examiner. Plaintiff argues that the ALJ is not free to

“pick and choose” only those medical opinions which support his position. 

The record demonstrates that the ALJ considered the opinion of the psychiatric CE. Tr. 18.

Moreover, he specifically noted that the medical record indicated “that so long as the claimant is not

required to have much contact with other people[,] especially the public, she is capable of some kind

of work activity.” Tr. 18. This is consistent with the CE’s report. Tr. 366. The ALJ did not accept

the opinion of the CE that Plaintiff required “benign supervision.” Id. However, the ALJ

appropriately exercised his responsibility as factfinder in weighing the evidence and in choosing to

incorporate limitations into his RFC assessment that were most supported by the record. Muse, 925

F.2d at 790. The task of weighing the evidence is the province of the ALJ. Chambliss v. Massanari,

269 F.3d 520, 523 (5th Cir. 2001). The relative weight to be given these pieces of evidence is within

the ALJ’s discretion. Id. The limitation on contact with the general public is consistent with the

reports of Dr. Mercer, the SAMC, and the psychiatric CE. However, other sources in the record did

not indicate that Plaintiff required benign supervision. I find that the ALJ did not err in weighing

the evidence and in deciding not to incorporate a limitation to benign supervision into his RFC

finding.

Therefore, I find that the ALJ’s mental RFC finding and his decision are supported by

substantial evidence in the record. 

 

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IV. CONCLUSION

Based upon the foregoing discussion of the issues, the evidence, and the law, this court

recommends that the United States District Judge affirm the Commissioner’s decision and dismiss

the Plaintiff’s complaint with prejudice.

The United States District Clerk shall serve a true copy of these findings, conclusions, and

recommendation on the parties. Pursuant to Title 28, United States Code, Section 636(b)(1), any

party who desires to object to these findings, conclusions, and recommendation must serve and file

written objections no later than September 29, 2005. A party filing objections must specifically

identify those findings, conclusions, or recommendation to which objections are being made. The

District Court need not consider frivolous, conclusory, or general objections. A party's failure to

file such written objections to these proposed findings, conclusions, and recommendation shall bar

that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140,

150, 106 S. Ct. 466, 472 (1985). Additionally, any failure to file written objections to the proposed

findings, conclusions, and recommendation on or before September 29, 2005, shall bar the aggrieved

party from appealing the factual findings and legal conclusions of the United States Magistrate

Judge that are accepted by the District Court, except upon grounds of plain error. See Douglass v.

United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).

DATED this 15th day of September, 2005.

_____________________________________

PHILIP R. LANE

UNITED STATES MAGISTRATE JUDGE

 

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