NANCY NOWAK, Magistrate Judge
TO: Hon. Xavier Rodriguez United States District Judge
I. Introduction
This is an action to review a decision of the defendant, the Commissioner of the Social Security Administration, pursuant to the Social Security Act ("the Act"), 42 U.S.C. § 405(g). Through the filing of this suit, Plaintiff/Claimant, Rachel Portillo, seeks reversal of the Commissioner's final decision that she is not disabled and, therefore, not entitled to receive Title II Disability Insurance Benefits ("DIB").
Docket Entry 1.
In her complaint and supporting brief, plaintiff argues that the Administrative Law Judge ("ALJ") erroneously assessed the plaintiffs mental impairments and failed to consider properly the evidence submitted by her treating and examining physicians, the medical expert who testified at the hearing, and the remaining medical evidence in the record.
Docket Entries 1 and 13.
Docket Entry 13.
The main issue presented in this appeal is whether substantial evidence and relevant legal standards support the decision that plaintiff was not a disabled individual, as defined under the Act, from August 3, 1996, her alleged onset date of disability, through July 14, 1999, the date of the ALJ's decision.
Having considered plaintiffs complaint and brief, the defendant's brief in support of the Commissioner's decision, the plaintiffs reply brief, the transcript of the Social Security Administration proceedings, and pleadings on file, the applicable case authority and relevant statutory and regulatory provisions, as well as the entire record in this matter, I recommend that plaintiffs motion be GRANTED and this case REMANDED for further proceedings consistent with the recommendations contained herein.
Docket Entries land 13.
Docket Entry 15.
Docket Entry 18.
II. Jurisdiction
The court has jurisdiction under 42 U.S.C. § 405(g).
III. Administrative Proceedings
According to the record in this case, plaintiff fully exhausted her administrative remedies before filing this action in federal court. Plaintiff filed her application for disability insurance benefits (DIB) on December 19, 1997, alleging disability beginning on August 3, 1996. Her application was initially denied on June 15, 1998, and again on reconsideration on September 1, 1998. Plaintiff then requested a hearing before an ALJ on September 28, 1998. The hearing was held on June 3, 1999, and plaintiff participated at the hearing and was represented by counsel. In addition to plaintiffs testimony, the ALJ also heard the testimony of medical expert Dr. Morris Lampert and vocational expert Judith Harper-Haley. During the hearing, plaintiffs counsel was fully able to examine the plaintiff, and the testifying medical and vocational experts.
Administrative Transcript ("Transcript"), at 134.
Id. Plaintiff filed a previous application for DIB on December 22, 1994, which alleged disability beginning September 30, 1994. After ALJ McCoy issued an unfavorable post-hearing decision on that application and plaintiff failed to appeal, ALJ McCoy's decision became final. See Transcript, at 15, 112.
Transcript, at 119.
Transcript, at 126. See also Transcript, at 124 (Plaintiffs request for reconsideration).
Transcript, at 130.
Transcript, at 34.
Plaintiff was 56 years old at the time of the hearing on June 3, 1999. She testified that she had an eighth grade education, and was the primary caretaker for her disabled husband. Plaintiff testified that she cared for her husband by giving him his medications. Plaintiff further testified that her 18 year old granddaughter lived at plaintiff' s home, and that they frequently received visits from plaintiffs four adult children.
Transcript, at 16, 39.
Transcript, at 40.
Transcript, at 50.
Id.
Transcript, at 40, 51.
Plaintiff testified that her daily activities included doing the laundry and the dishes, and occasionally cooking. Plaintiff stated, however, that her physical impairments prevented her from mopping, cleaning, making up the beds, sweeping, dusting or vacuuming. Plaintiff testified that she was in charge of paying all the bills. Plaintiff testified that she occasionally watched television or read magazines.
Transcript, at 49.
Transcript, at 49, 50.
Transcript, at 53.
Transcript, at 52.
Plaintiffs most recent past relevant work was as a shoe inspector and retail return clerk with the San Antonio Shoe ("SAS") company. Plaintiff testified that she worked for SAS for approximately ten years. She testified that she stopped working because her physical pain rendered her unable to perform her duties.
Transcript, at 45, 46, 97, 140.
Id.
Plaintiffs medical records reveal that she has been diagnosed with myriad medical conditions. Included among plaintiff's diagnosed conditions are: joint problems, asthma, osteopenia, urological disorders, gall stones, degenerative disc disease, a throat disorder, depression and anxiety, Plaintiffs past surgeries have included gall bladder removal and a partial hysterectomy.
See Transcript, at 16-19, 55-57, 88.
The ALJ rendered his written decision on July 14, 1999, finding that plaintiff was not a disabled individual as defined by the Act. Specifically, the ALJ found that plaintiffs impairments, consisting of mild degenerative disc disease at L2-L3, depressive disorder and anxiety, were severe but did not preclude plaintiff from performing her past relevant work as a boot and shoe inspector, a complaint clerk, and a checker. Although the ALJ noted the medical expert's recommendation that plaintiff undergo formal psychiatric testing, the ALJ opined that such testing was unnecessary in light of his findings that plaintiff grossly exaggerated her medical problems and was, therefore, not credible.
Transcript, at 12.
Transcript, at 25-26, ¶¶ 3, 7.
Transcript, at 20.
Plaintiff requested review of the hearing and decision on July 27, 1999. On May 22, 2002, the Appeals Council concluded that there was no basis upon which it could grant plaintiff's request for review, thereby denying plaintiffs request. Plaintiff' commenced the instant action in this court on July 17, 2002.
Transcript, at 11.
Transcript, at 6.
Docket Entry 1
IV. Issue Presented
Whether substantial evidence and relevant legal standards support the Commissioner's decision that plaintiff" was not disabled within the meaning of the Act?
V. Analysis
A. Standard of Review
In reviewing the Commissioner's decision denying disability insurance benefits, the court is limited to a determination of whether substantial evidence supports the decision and whether the Commissioner applied the proper legal standards in evaluating the evidence. "Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Substantial evidence "must do more than create a suspicion of the existence of the fact to be established, but `no substantial evidence' will be found only where there is a `conspicuous absence of credible choices' or `no contrary medical evidence.'"
Martinez v. Chater. 64 F.3d 172, 173 (5th Cir. 1995); 42 U.S.C. § 405(g).
Villa v. Sullivan , 895 F.2d 1019, 1021 (5th Cir. 1990) (quoting Hames v. Heckler , 707 F.2d 162, 164 (5th Cir. 1983)).
Abshire v. Bowen , 848 F.2d 638, 640 (5th Cir. 1988) (quoting Hames , 707 F.2d at 164).
If the Commissioner's findings are supported by substantial evidence, then they are conclusive and must be affirmed. In reviewing the Commissioner's findings, the court must carefully examine the entire record, but refrain from re-weighing the evidence or substituting its judgment for that of the Commissioner. "Conflicts in the evidence and credibility assessments are for the Commissioner and not for the courts to resolve." Four elements of proof are weighed by the courts in determining if substantial evidence supports the Commissioner's determination: (1) objective medical facts, (2) diagnoses and opinions of treating and examining physicians, (3) the claimant's subjective evidence of pain and disability, and (4) the claimant's age, education and work experience.
Martinez , 64 F.3d at 173.
Ripley v. Chater , 67 F.3d 552, 555 (5th Cir. 1995); Villa , 895 F.2d at 1021 ("The court is not to reweigh the evidence, try die issues de novo, or substitute its judgment for that of the Commissioner.").
Martinez , 64 F.3d at 174.
Id.
1. Entitlement to Benefits
Every individual who is insured for disability insurance benefits, has not reached retirement age, has filed an application for benefits, and is under a disability is entitled to receive disability insurance benefits. The term "disabled" or "disability" means the inability to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." A claimant shall be determined to be disabled only if his physical or mental impairment or impairments are so severe that he is unable to not only do his previous work, but cannot, considering his age, education, and work experience, participate in any other kind of substantial gainful work which exists in significant numbers in the national economy, regardless of whether such work exists in the area in which he lives, whether a specific job vacancy exists, or whether he would be hired if he applied for work.
42U.S.C § 423(a)(1).
Id. § 1382c(a)(3)(A).
Id. § 1382c(a)(3)(B).
2. Sequential Evaluation Process and Burden of Proof
Regulations set forth by the Commissioner prescribe that disability claims are to be evaluated according to a five-step process. A finding that a claimant is not disabled at any point in the process is conclusive and terminates the Commissioner's analysis.
20C.F.R. § 404.1520 and 416.920 (2002).
Leggett v. Chater , 67 F.3d 558, 564 (5th Cir. 1995).
The first step involves determining whether the claimant is currently engaged in substantial gainful activity. If the claimant is engaged in substantial gainful activity, he will be found not disabled regardless of his medical condition or his age, education, or work experience. The second step involves determining whether the claimant's impairment is severe. If it is not severe, the claimant is deemed not disabled. In the third step, the Commissioner compares the severe impairment with those on a list of specific impairments. If it meets or equals a listed impairment, the claimant is deemed disabled without considering his age, education, or work experience. If the impairment is not on the list, the Commissioner, in the fourth step, reviews the claimant's RFC and the demands of his past work. If he is still able to do his past work, he is not disabled. If he cannot perform his past work, the Commissioner moves to the fifth and final step of evaluating the claimant's ability, given his residual capacities, age, education, and work experience, to do other work. If he cannot do other work, he will be found disabled.
20 C.F.R. § 404.1520 and 416.920.
Id.
Id. ,
Id.
20 C.F.R. § 404.1520 and 416.920.
Id. ,
Id. ,
Id. ,
Id.
The claimant bears the burden of proof at the first four steps of the sequential analysis. Once he has shown that he is unable to perform his previous work, the burden shifts to the Commissioner to show that there is other substantial gainful employment available that the claimant is not only physically able to perform, but also, taking into account his exertional and non-exertional limitations, able to maintain for a significant period of tune. If the Commissioner adequately points to potential alternative employment, the burden shifts back to the claimant to prove that he is unable to perform the alternative work.
Leggett , 67 F.3d at 564.
Watson v. Barnhart , 288 F.3d 212, 217 (5th Cir. 2002).
Anderson v. Sullivan. 887 F.2d 630, 632-33 (5th Cir. 1989).
In this case, the ALJ reached his finding of no disability at Step Four of the sequential evaluation process. At Step One, the ALJ concluded that plaintiff had not engaged in substantial gainful activity since August 3, 1996. At Step Two, the ALJ found that the plaintiff had the following severe impairments: mild degenerative disc disease at L2-L3, depressive disorder and anxiety disorder. But, the ALJ found that said impairments, individually or in combination, did not meet or medically equal a listed impairment at Step Three. At Step Four, the ALJ concluded that the plaintiff had the residual functional capacity (RFC) to perform work related activities of medium work, "with not much detailed contact with others, no complex work, no intense concentration, and no high stress." Thus, the ALJ determined that plaintiff was medically able to return to her past relevant work as a boot and shoe inspector, a complaint clerk, and a checker, and was, therefore, not disabled within the meaning of the Act. B. Was the July 14, 1999, decision supported by substantial evidence?
Transcript, at 25, ¶ 2.
Transcript, at 25, ¶ 3.
Transcript, at 25-26, ¶ 3.
Transcript, at 26, ¶ 6.
Transcript, at 26, ¶¶ 7, 8, 9.
Plaintiff maintains that the ALJ erred in several ways, resulting in the erroneous conclusion that she was not disabled. In particular, plaintiff contends that the ALJ committed harmful, reversible error in that he failed to order additional neuropsychiatric testing as suggested by the medical expert, failed to base his findings of plaintiff's non-exertional limitations in the medical evidence of the record, and, given his inadequate development of the medical evidence of record, failed to propound a hypothetical to the vocational expert which reasonably incorporated all the plaintiffs mental and physical impairments.
Docket Entry 13.
The primary issue before me is whether the ALJ properly declined to obtain further testing. If the ALJ was required by the applicable case, statutory and regulatory law to secure additional neuropsychiatric testing and he failed to do so, then his findings regarding plaintiffs non-exertional limitations and her ability to return to her past relevant work, as well as the hypothetical he propounded to the vocational expert, were necessarily insufficient and inadequate. Thus, this first issue is potentially dispositive.
The case law is clear that it is the province of the ALJ to make credibility determinations and to resolve any conflicts in the evidence, including determinations about the credibility of the medical experts. However, the case law is equally firm that the ALJ may not "`pick and choose' only the evidence that supports his position," but must, instead, "consider all the record evidence." Similarly, the ALJ's rejection of any testimony on the basis of credibility
must be supported by legitimate reasons for disbelief and cannot be a guise for circumventing the rule that objective evidence is not needed to support subjective evidence of pain.
Martinez , 64 F.3d at 174.
Moore v. Sullivan , 919 F.2d 90 K 905 (5th Or. 1990).
Loza v. Apfel. 219 F.3d 378, 393 (5th Cir. 2000).
When the ALJ assesses the oral and written evidence provided by the various medical professionals, he must ordinarily give "substantial weight . . . to the opinion, diagnosis and medical evidence of the claimant's treating physician." However, the ALJ can `"reject the opinion of any physician if the evidence supports a contrary conclusion'" provided the ALJ has good cause for so doing.
[W]hen good cause is shown, less weight, little weight, or even no weight may be given to the physician's testimony. The good cause exceptions we have recognized include disregarding statements that are brief and conclusory, not supported by medically acceptable clinical laboratory diagnostic techniques, or otherwise unsupported by the evidence.
Dorsey v. Heckler , 702 R2d 597, 603 (5th Cir. 1983).
Bradley v. Bowen , 809 F.2d 1054, 1057 (5th Cir. 1987), citing Oldham v. Schweiker, 660 F.2d 1078, 1084 (Former 5th Cir. Unit B 1981).
Greenspan v. Shalala , 38 F.3d 232, 237 (5th Cir. 1994).
Despite the weight given to the treating source's opinion, the ALJ must evaluate every medical opinion received. When the ALJ does not give the treating source's opinion controlling weight, he must consider various factors in deciding the weight given to each opinion. Those factors are: (1) the examining relationship (the ALJ should generally give more weight to a source who examined the claimant); (2) the treatment relationship (the ALJ should generally give more weight to a source who treated claimant), including the length, nature and extent of the treatment relationship, as well as the frequency of the examination(s); (3) the supportability of the opinion (the ALJ should give greater weight to the source who provides more relevant evidence to support the opinion); (4) consistency (the ALJ should give greater weight to opinions which are consistent with the record as a whole); (5) specialization (the ALJ should generally give greater weight to the opinion of a specialist); and (6) any other factors which "tend to support or contradict the opinion. "
20 C.F.R. § 404.1527(d).
Id.
20C.F.R. § 404.1527(d)(1).
20 C.RR. § 404.1527(d)(2).
20 C.RR. § 404.1527(d)(2(i)-(ii)).
20 C.RR. § 404.1527(d)(3).
20 C.RR. § 404.1527(d)(4).
20 C.RR. § 404.1527(d)(5). See also Moore , 919 R2d, at 905.
20 C.RR. § 404.1527(d)(6).
When a medical opinion is incomplete or inconsistent, the ALJ is obligated to resolve the inconsistencies or inadequacies, One of the primary social security rulings on medical source opinions directs the ALJ to re-contact a medical source, when possible, to resolve any inconsistencies in the evidence provided by that source. Specifically, the ruling states
Policy Interpretation Ruling Titles II and XVI: Medical Source Opinions on Issues Reserved to the Commissioner , SSR 96-5p (July 2, 1986).
Because treating source evidence (including opinion evidence) is important, if the evidence does not support a treating source's opinion on any issue reserved to the Commissioner and the adjudicator cannot ascertain on the basis of the opinion from the case record, the adjudicator must make `every reasonable effort' to recontact the source for clarification of the reasons for the opinion.
Thus, even though the ALJ and SSA retain the "final responsibility for deciding certain issues, such as whether an individual is disabled under the Act," and, similarly, the responsibility for resolving all conflicts in the evidence, the ALJ is still required, at a minimum, to attempt to obtain clarification when the record contains inconsistencies.
Id., at *1.
In addition, the ALJ is obligated to obtain a government consultative examination when the record shows that such testing or examination is vital to the ALJ's ability to make the disability determination.
To be very clear, `full inquiry' does not require a consultative examination at government expense unless the record establishes that such an examination is necessary to enable to administrative law judge to make the disability decision.
Stated another way,
`The decision to require such an examination is discretionary . . .' but limited where the claimant `raises the requisite suspicion' that such an examination is
necessary for the ALJ to discharge his duty of full inquiry.
In the instant case, there were many medical records which establish that plaintiff was diagnosed with mild to moderate depression, anxiety and/or agoraphobia. The records span a time period from March 1997, to May 1999. Aside from the medical records from plaintiff's treating physicians, the ALJ also had before him the report of Dr. Lewis Richmond, a neuropsychiatrist who examined plaintiff on April 14, 1998, and the testimony of Dr. Morris Lampert, the testifying medical expert.
See Transcript, at 196, 198, 209, 222-223, 243, 274, 281, 300, 303, 308-309.
Transcript, at 206.
After conducting an extensive examination, Dr. Richmond diagnosed plaintiff with
A. Dysthymic Disorder approaching Major Depressive Disorder proportions at times — manifested by feelings of helplessness and hopelessness, impairment of sleeping pattern, emotional lability, feelings at times of preferring not to be alive.
B. Panic Disorder with agoraphobia — manifested by episodes of rapid heartbeat, shortness of breath, feelings of helplessness, apprehensiveness about death, feeling faint, and dizzy. These occur related to leaving her house.
Dr. Richmond opined that plaintiff had a GAP of 45-50, and summarized plaintiffs prognosis:
Transcript, at 209. The GAF (global assessment of functioning) is a rating intended for use by mental health clinicians in planning treatment and measuring the effectiveness of treatment. The scale, utilized only in regards to psychological, social and occupational functioning, is divided into ten ranges of functioning. When the clinician assigns a GAF rating, he is choosing a single value that best reflects the patient's overall level of functioning. The lowest rating of functioning is 1, while the highest rating is 100. A GAF rating of 45-50 indicates: "Serious symptoms . . . OR any serious impairment in social, occupational, or school functioning (e.g. no friends, unable to keep a job)." DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDER (DSM-IV-TR) 32, 34 (4th ed. 2000).
Ms. Portillo's physical and emotional difficulties impair her occupational, social, and intrapsychic adaptation. Her prognosis is guarded because of the chronicity and severity of symptomatology and the alleged lack of response to several modalities of treatment. It is felt that because of these difficulties and related difficulties with concentration and memory, her condition will continue to be chronic.
Importantly, Dr. Richmond not only examined the plaintiff, but was a Diplomate of the American Board of Psychiatry and Neurology, a Fellow of the American Psychiatric Association, a Fellow of the American Society for Adolescent Psychiatry, and a Fellow of the American Group.
Transcript, at 206. As an examining physician and a specialist, Dr. Richmond's medical opinions should have been accorded great weight. See 20 C.F.R. § 404.1527(d)(l-6).
In addition to the comprehensive report provided to the ALJ by Dr. Richmond, the ALJ also had the testimony of Dr. Morris Lampert, the testifying medical expert to consider in reaching his decision. After hearing plaintiffs testimony and reviewing all the medical records, Dr. Lampert repeatedly stated that further medical testing was necessary to determine the nature and extent of plaintiffs impairment. Dr. Lampert even briefly addressed the issue of plaintiffs credibility, and again advised that further neuro-psychiatric testing was the appropriate way to determine the exact nature of plaintiff's impairments. Dr. Lampert testified:
no matter how good the psychiatrist is, they can only reflect back what the patient is relating to them at the time. You need to augment that by formal psychological testing. Now, Dr. Richmond is a good psychiatrist . . . he's an excellent psychiatrist . . . He's done a very thorough job on the basis of the information that he has, the information that he's given . . . I'm just saying that this should be augmented by, let's see, psychological testing. . . . I think that since there's a question about memory and concentration, I think psychological testing would be good. I just think an in depth, good testing would go a long way. That tends to be more objective, and they can cut across statements that seem, what is the validity of it through other means.
Again, in summarizing his expert medical opinion at the end of the hearing, Dr. Lampert stated
I think, given the mental status findings of Dr. Richmond, I think this would probably emphasize that neuropsychological as well as routine psychological testing be done. Any time you get some evidence that there might be a problem with memory, you have to follow up with that. I mean you can't use that by itself, but that indicates further testing.
Despite Dr. Lampert's repeated insistence that testing was necessary to complete the record, the ALJ concluded that further neuropsychiatric testing was not necessary because the plaintiff was not credible. The ALJ determined that the plaintiff lacked credibility based on a number of different incidences contained in the record. For example, the ALJ found it incredible that the plaintiff was unable to spell "cat" on one occasion, but was able to fill out a questionnaire containing "hundreds" of words on another occasion. Similarly, the ALJ was incredulous at the fact that plaintiff was unable to recall her exact number of siblings or the number of years she had been married on one occasion, yet able to recite those same facts at the hearing. The ALJ stated:
Transcript, at 19-20, 21. See also Transcript, at 206, wherein Dr. Richmond reports that the plaintiff spelled cat as "kat" during the medical examination.
Id.
Amazingly, claimant could not spell `cat' correctly and did not know how many siblings she had or how long she was married (with respect to the latter two items, claimant answered both correctly at the hearing, and previously answered both of these questions correctly at other times in the record . . . That claimant, who testified that she hand wrote exhibit B3E with hundreds of words, could not spell cat is simply unbelievable. Claimant grossly exaggerated her mental problems and this impacts claimant's credibility.)
Additionally, the ALJ concluded that plaintiffs daily activities — taking care of her husband and paying her bills — belied her claims of mental impairment.
Transcript, at 21-22.
While the ALJ is authorized to resolve credibility issues and to ultimately determine whether a plaintiff is disabled under the Act, he is not authorized to form medical opinions. As the Fifth Circuit has stated:
`But judges, including administrative law judges of the Social Security Administration, must be careful not to succumb to the temptation to play doctor . . . Common sense can mislead; lay intuitions about medical phenomena are often wrong.'
In this case, the ALJ gave greater weight to his own lay intuitions than to the opinions of the medical expert and the consulting medical specialist. For example, he utilized his own common sense to opine that someone with memory loss would have to consistently forget the same information in order to have a genuine mental impairment. Similarly, the ALJ surmised that because the plaintiff testified that she paid bills, she had no deficiencies of concentration, memory, persistence or pace. Notably, the ALJ did not ask the plaintiff if problems ever arose with her bill paying — such as misspellings of the parties to whom she wrote the checks, improperly calculated payments, and the like.
Because the SSA's own medical expert repeatedly informed the ALJ that the record was not complete, I find that the ALJ's decision was not supported by substantial evidence. The ALJ failed to give the appropriate weight to Dr. Richmond as an examining physician and specialist, and failed to order the neuropsychiatric examination necessary to discharge his duty of full inquiry. Because the ALJ did not fully and fairly develop the record as it related to plaintiffs mental impairments, he also failed to propound a hypothetical to the vocational expert which reasonably incorporated all of plaintiffs impairments. Since the neuropsychiatric testing is necessary to determine the extent of plaintiffs mental impairment, and, therefore, her ability to return to her past relevant work, plaintiff has demonstrated that the evidence at issue might have altered the ALJ's decision. For these reasons, I find that plaintiff has established that she was prejudiced by the ALJ's error.
See 29C.F.R. § 404.1527(d)(l-6).
Haywood. 888 F.2d, at 1472. Notably, plaintiff, by proffering the testimony of the medical expert, has raised the "requisite suspicion" that the examination is necessary for the ALJ to reach his decision.
See, e.g. Bowling y. Shalala. 36 F.3d 431, 436 (5th Cir. 1994)("Unless the hypothetical question posed to the vocational expert by the ALJ can be said to incorporate reasonably all disabilities of the claimant recognized by the ALJ, and the claimant or his representative is afforded the opportunity to correct deficiencies in the ALJ's question by mentioning or suggesting to the vocational expert any purported defects in the hypothetical questions (including additional disabilities not recognized by the ALJ's findings and disabilities recognized but omitted from the question), a determination of non-disability based on such a defective question cannot stand.")
Sec Carey v. Apfel. 230 F.3d 131, 142 (5th Cir. 2000), "This Court will not reverse the decision of an ALJ for failure to fully and fairly develop the record unless the claimant shows that he or she was prejudiced by the ALJ's failure . . . To establish prejudice, a claimant must demonstrate that he or she `could and would have adduced evidence that might have altered the result (internal citations omitted).'"
VI. Recommendation
Based on the foregoing, I recommend that plaintiff's alternative request for remand for further factual development (Docket Entry 13) be GRANTED and this case be REMANDED. The ALJ's decision, and particularly his assessment of plaintiff's mental impairments and residual functional capacity, is not supported by substantial evidence. The ALJ is hereby directed to obtain further neuropsychiatric testing of the plaintiff'. In arranging the testing, the ALJ should request that the neuropsychiatrist examine the nature and extent of plaintiffs depression, anxiety, agoraphobia, and any possible hypochondria.
VII. Instructions For Service And Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this Memorandum and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to Title 28 U.S.C. § 636(b)(1) and FED. R. Civ. P. 72(b), any party who desires to object to this report must serve and file written objections to the Memorandum and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from ade novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Memorandum and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
See Thomas v. Arn , 474 U.S. 140, 149-152 (1985).
Douglass v. United Servs. Auto. Ass'n. 79 F.3d 1415, 1428-29 (5th Cir. 1996).
ORDER
All matters for which this cause was referred to the Magistrate Judge having been considered and acted upon,
It is ORDERED that the above-entitled and numbered cause be, and it hereby is, RETURNED to the district court for all purposes.
SIGNED .