Findings, Conclusions and Recommendation of

the United States Magistrate Judge–Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JESSIE J. BUITRON, §

PLAINTIFF, §

§

VS. § CIVIL ACTION NO. 4:06-CV-031-Y

§

JO ANNE B. BARNHART, §

COMMISSIONER OF SOCIAL SECURITY, §

DEFENDANT. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

AND

NOTICE AND ORDER

This case was referred to the United States Magistrate Judge pursuant to the provisions of

Title 28, United States Code, Section 636(b). The Findings, Conclusions and Recommendation of

the United States Magistrate Judge are as follows:

FINDINGS AND CONCLUSIONS

A. STATEMENT OF THE CASE

Plaintiff Jessie J. Buitron brings this action pursuant to Section 405(g) of the Social Security

Act, Title 42 of the United States Code, for judicial review of a final decision of the Commissioner

of Social Security denying his claim for disability insurance benefits under Title II of the Social

Security Act. Buitron applied for disability benefits on December 10, 2002, (Tr. 107), with an

amended alleged disability onset date of October 2001. (Tr. 41). He met the insured status

requirements through at least the date of the administrative decision. (Tr. 26). 

After the Social Security Administration denied his application for benefits both initially and

 

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on reconsideration, Buitron requested a hearing before an administrative law judge (the "ALJ"), and

ALJ J. Frederick Gatzke held a hearing on May 10, 2004 in Fort Worth, Texas. (Tr. 38-67). Buitron

was represented by counsel. On June 24, 2004, the ALJ issued a decision that Buitron was not

disabled because he had the residual functional capacity (RFC) to perform work activity at any

exertional level of exertion so long as the work was simple, repetitive, and routine in nature, and

required only incidental contact with the public and co-workers. (Tr. 34). The Appeals Council

denied Buitron’s request for review of his case, leaving the ALJ’s decision to stand as the final

decision of the Commissioner. (Tr. 3).

B. STANDARD OF REVIEW

The Social Security Act defines a disability as a medically determinable physical or mental

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

gainful activity. 42 U.S.C. § 423(d)(1)(A); McQueen v. Apfel, 168 F.3d 152, 154 (5th Cir. 1999).

To determine whether a claimant is disabled, and thus entitled to disability benefits, a five-step

analysis is employed. 20 C.F.R. § 404.1520. First, the claimant must not be presently working at

any substantial gainful activity. Substantial gainful activity is defined as work activity involving the

use of significant physical or mental abilities for pay or profit. 20 C.F.R. § 404.1527. Second, the

claimant must have an impairment or combination of impairments that is severe. 20 C.F.R. §

404.1520(c). At the third step, disability will be found if a claimant’s impairment or combination

of impairments meets or equals an impairment listed in the appendix to the regulations. Id. §

404.1520(d). Fourth, if disability cannot be found on the basis of a claimant’s medical status alone,

the impairment or impairments must prevent the claimant from returning to his past relevant work.

 

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Id. § 404.1520(e). And fifth, the impairment must prevent the claimant from doing any work,

considering the claimant's residual functional capacity, age, education, and past work experience.

Id. § 404.1520(f); Crowley v. Apfel, 197 F.3d 194, 197-98 (5th Cir.1999). 

At steps one through four, the burden of proof rests upon the claimant to show he is disabled.

If the claimant satisfies this responsibility, the burden shifts to the Commissioner at step five of the

process to show that there is other gainful employment the claimant is capable of performing in spite

of his existing impairments. Crowley, 197 F.3d at 198. If the Commissioner meets this burden, the

claimant must then prove that he cannot in fact perform the work suggested. Waters v. Barnhart, 276

F.3d 716, 718 (5th Cir. 2002). 

A denial of disability benefits is reviewed only to determine whether the Commissioner

applied the correct legal standards and whether the decision is supported by substantial evidence in

the record as a whole. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); Hollis v. Bowen, 837

F.2d 1378, 1382 (5th Cir. 1988). Substantial evidence is such relevant evidence as a responsible

mind might accept to support a conclusion. Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). It is

more than a mere scintilla, but less than a preponderance. Id. A finding of no substantial evidence

is appropriate only if no credible evidentiary choices or medical findings support the decision. Id.

Conflicts in the evidence are for the Commissioner and not the court to resolve. Masterson, 309

F.3d at 272. 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 the evidence weighs against the

Commissioner's decision. Id.; Harris v. Apfel, 209 F.3d 413, 417 (5th Cir.2000); Hollis, 837 F.2d

at 1383.

 

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 Only a brief overview of Buitron’s medical problems and treatment history is necessary because Buitron

does not dispute the weight or attention the ALJ gave the evidence. Buitron instead contends that the ALJ’s residual

functional capacity assessment violates applicable law because the assessment is too vague and fails to address all

areas of mental functioning relevant to a claimant’s ability to work.

Findings, Conclusions and Recommendation of

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C. ISSUE

Whether the Commissioner’s decision is consistent with applicable legal standards and

supported by substantial evidence.

D. ADMINISTRATIVE RECORD1

Buitron was born December 23, 1948. (Tr. 41). He obtained his GED and worked as a

machine operator until October 2001 when his employer offered him early retirement. (Tr. 42). He

testified that he had a history of disciplinary problems with his employer and his job performance

had declined over time because of panic and anxiety attacks that affected his attendance and

concentration. (Tr. 43). He was also written up at work because he had problems with rage and

anger management. Buitron testified that he was on probation for his performance or poor

attendance for ten of the thirteen years he had worked for his employer. (Tr. 45). After he stopped

working, he stayed home most of the time and watched television. (Tr. 42).

Medical expert John Simonds, M.D., reviewed Buitron’s medical history and testified that

Buitron had no exertional limitations, but Buitron did have a history of treatment for major

depression, post traumatic stress disorder related to his military service, bipolar disorder, and anxiety

disorder. (Tr. 48-49). Simonds noted that Buitron showed overall improvement when he was

compliant with his medication regimen, and opined that none of Buitron’s mental impairment were

of listing-level severity. Simonds opined that Buitron should be restricted to minimal exposure to

 

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the public and co-workers. (Tr. 49).

Vocational expert Donna Humphries testified that Buitron’s previous work as a machine

operator was skilled work that required medium exertion. (Tr. 64). The ALJ asked Humphries to

consider a hypothetical individual of Buitron’s age, education, and work experience who was limited

to work that was simple and repetitive in nature and only involved incidental contact with the public

and co-workers. (Tr. 64). Humphries testified that there were several unskilled jobs available in

the national economy that such an individual could perform, including machine tender (with 7,500

jobs in Texas and 150,000 jobs in the nation), hand-packing type positions (with 18,000 jobs in

Texas and 350,000 jobs nationwide), and manual hand labor positions (with 70,000 jobs in Texas

and one million jobs nationwide). (Tr. 64-65).

E. ALJ DECISION

The ALJ found that Buitron had not engaged in substantial gainful activity since his alleged

onset date and further found that the medical evidence established that Buitron had severe posttraumatic stress disorder versus a panic disorder, depression versus a bipolar disorder, a history of

polysubstance abuse, and ischemic heart disease. (Tr. 27). The ALJ noted that Buitron had also

been diagnosed with hypertension and degenerative joint disease; however, these impairments were

not considered severe for purposes of the Social Security Act. With respect to Buitron’s mental

impairments, the ALJ founds that his condition caused moderate limitation in daily activities, social

functioning, and concentration, persistence and pace, and one or two episodes of decompensation.

(Tr. 32). See 20 C.F.R. § 404.1520a(b). The ALJ found that Buitron had no impairment or

combination of impairments meeting or equaling the severity of a listed impairment. (Tr. 27). 

 

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After summarizing the objective and subjective evidence, the ALJ found that Buitron had

no exertional restrictions and retained the residual functional capacity for work activity that was

simple, repetitive, and routine in nature and involved only incidental contact with the public and coworkers. (Tr. 34). The ALJ accepted the vocational expert’s testimony that there were jobs

available for a person of Buitron’s age, education, and residual functional capacity. Accordingly,

the ALJ concluded that Buitron was not disabled or entitled to disability insurance benefits at any

time through the date of the administrative decision. (Tr. 35-36).

F. DISCUSSION

Buitron contends that the ALJ’s determination that he can perform the jobs identified by the

vocational expert is unsupported by substantial evidence and inconsistent with applicable legal

standards because the residual functional capacity (RFC) assessment is insufficient. RFC reflects

the most that an individual can still do despite his limitations. 20 C.F.R. § 404.1545(a); SOCIAL

SECURITY RULING 96-8p. It reflects the individual’s maximum remaining ability to do sustained

work activity in an ordinary work setting on a regular and continuing basis. SOCIAL SECURITY

RULING 96-8p; Myers v. Apfel, 238 F.3d 617, 620 (5th Cir. 2001). The responsibility for assessing

RFC rests with the ALJ at the administrative hearing level, 20 C.F.R. § 404.1546(c), and the

assessment must include a narrative discussion describing how the evidence supports each

conclusion, citing specific medical facts and non-medical evidence. SOCIAL SECURITY RULING 96-

8p. 

Buitron asserts that the ALJ reached the unfounded conclusion that Buitron could perform

unskilled work without first addressing all of the areas of limitation that may be associated with a

 

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 Part of Buitron’s argument is that “simple, repetitive, and routine” are so generic that they could refer to

a variety of both physical and mental limitations, but a review of the ALJ’s decision and the testimony of the

vocational expert does not indicate that the ALJ intended to refer to anything other than Buitron’s mental limitations

or that the vocational expert was confused by the terms the ALJ used.

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mental impairment. The work-related mental activities generally required for competitive,

remunerative work include: (1) understanding, remembering and carrying out instructions; (2) using

judgment in making work-related decisions; (3) responding appropriately to supervision, co-workers

and usual work situations; and (4) dealing with changes in a routine work setting. 20 C.F.R. §

404.1521(b)(3)-(6); SOCIAL SECURITY RULING 96-8p. A limited ability to carry out mental activities

may reduce a claimant’s ability to do past work or other work. 20 C.F.R. § 404.1545(c). 

In his written decision, the ALJ stated that he had concluded that Buitron was capable of only

unskilled work, but the ALJ made that statement in explaining why Buitron could not be expected

to perform his past relevant work as a machine operator, which was a skilled job. (Tr. 34). Earlier

in his decision, the ALJ had made a specific RFC assessment and found that Buitron retained the

ability to perform simple, repetitive and routine work that required only incidental contact with the

public and co-workers. (Tr. 34). 

Buitron acknowledges that the ALJ found him capable of performing work that was simple,

repetitive, and routine in nature,2

 but he asserts this assessment is inadequate because it does not

address his ability to carry out instructions, use judgment, or deal with changes in a routine work

setting, which are basic work-related mental activities recognized in the regulations and social

security rulings. Although Buitron might prefer more specificity, the RFC assessment sufficiently

addresses the areas of work-related mental activities recognized in the Commissioner’s regulations

 

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and rulings. Moreover, Buitron makes vague allegations that the ALJ did not incorporate other

allegations that may be associated with a mental impairment, but he does not contend that his

particular mental impairments impose any additional work-related limitations that are not accounted

for in the ALJ’s decision or the vocational expert’s testimony

The court likewise rejects Buitron’s assertion that the ALJ did not comply with Social

Security Ruling 85-15, which requires an individualized assessment of Buitron’s capability for basic

work-related mental activities. SOCIAL SECURITY RULING 85-15. Social Security Rulings are

published under authority of the Commissioner and are binding on the Administration. Hall v.

Schweiker, 660 F.2d 116, 119 n.4 (5th Cir. [Unit A] 1981)(per curiam). An agency must follow its

own procedures, even if those procedures are more rigorous than what would otherwise be required.

Hall, 660 F.2d at 119, cited in Newton v. Apfel, 209 F.3d 448, 459 (5th Cir. 2000). Should the agency

violate its internal rules and prejudice result, the proceedings are tainted and any action taken cannot

stand. Hall, 660 F.2d at 119.

The ALJ’s decision reflects that he engaged in the careful consideration of Buitron’s workrelated mental limitations that Ruling 85-15 requires. The ALJ reviewed Buitron’s subjective

allegations, the medical expert’s testimony, and the objective medical evidence of record before

finding that Buitron retained the RFC for a modified range of simple, repetitive, and routine work

activity with limited contact with the public or co-workers. (Tr. 32-34). Based on the vocational

expert’s testimony, the ALJ determined that there was other work available in the national economy

for Buitron given his age, education, and RFC. The ALJ sufficiently complied with the requirements

of Ruling 85-15.

 

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 The regulations outline a process (referred to as “the technique”) to be used for evaluation of mental

impairments. First, symptoms, signs, and laboratory findings are evaluated to determine whether the claimant has a

medically determinable mental impairment. 20 C.F.R. § 404.1520a(b)(1). Once an impairment is found, the

administration will rate the degree of functional limitation resulting from the impairment. Id. § 404.1520a(b)(2). 

Four broad functional areas are recognized: (1) activities of daily living; (2) social functioning; (3) concentration,

persistence, and pace; and (4) episodes of decompensation. Id. § 404.1520a(c)(3). After rating the claimant’s

functional limitations, the administration determines whether the impairment is severe or not severe given the degree

of functional loss found in the four given areas. Id. § 404.1520a(d). 

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Buitron also argues that an ALJ cannot rely only on the four broad areas of mental

functioning outlined in the Commissioner’s special psychiatric review technique to draw conclusions

about a claimant’s work-related residual mental capacity because the broader areas of functioning

relate only to the severity of an impairment for purposes of Steps Two and Three in the sequential

evaluation process.3

 Buitron’s statement of the law is correct. The psychiatric review technique is

used to rate the severity of a given mental impairment at Steps Two and Three of the sequential

evaluation process, and is not a substitute for the more detailed mental RFC assessment used at Steps

Four and Five. SOCIAL SECURITY RULING 96-8p. However, a review of the ALJ’s decision shows

that he did not rely solely on the technique’s broader areas of functioning in assessing Buitron’s

RFC, and did not draw conclusions about Buitron’s mental limitations from application of the

psychiatric review technique alone. Buitron’s case citations in his brief are distinguishable on their

facts. 

Buitron has not demonstrated that the Commissioner’s unfavorable decision is the product

of legal error or unsupported by substantial evidence. The decision should be affirmed.

RECOMMENDATION

It is recommended that the decision of the Commissioner be affirmed. 

NOTICE OF RIGHT TO OBJECT TO PROPOSED

 

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 FINDINGS, CONCLUSIONS AND RECOMMENDATION

 AND CONSEQUENCES OF FAILURE TO OBJECT

Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific

written objections in the United States District Court to the United States Magistrate Judge’s

proposed findings, conclusions and recommendation within ten (10) days after the party has been

served with a copy of this document. The court is hereby extending the deadline within which to

file specific written objections to the United States Magistrate Judge’s proposed findings,

conclusions and recommendation until August 11, 2006. The United States District Judge need only

make a de novo determination of those portions of the United States Magistrate Judge’s proposed

findings, conclusions and recommendation to which specific objection is timely made. See 28

U.S.C. § 636(b)(1). Failure to file by the date stated above a specific written objection to a proposed

factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest

injustice, from attacking on appeal any such proposed factual findings and legal conclusions

accepted by the United States District Judge. See Douglass v. United Services Auto Ass'n, 79 F.3d

1415, 1428-29 (5th Cir. 1996)(en banc).

ORDER

Under 28 U.S.C. § 636, it is hereby ORDERED that each party is granted until August 11,

2006 to serve and file written objections to the United States Magistrate Judge’s proposed findings,

conclusions and recommendation. It is further ORDERED that if objections are filed and the

opposing party chooses to file a response, the response shall be filed within seven (7) days of the

filing date of the objections.

 

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It is further ORDERED that the above-styled and numbered action, previously referred to

the United States Magistrate Judge for findings, conclusions and recommendation, be and hereby

is returned to the docket of the United States District Judge.

SIGNED JULY 21, 2006.

 /s/ Charles Bleil 

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

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