Opinion
Civil No. SA-05-CA-0334-RF.
March 31, 2006
ORDER ADOPTING MEMORANDUM AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
BEFORE THE COURT is the Memorandum and Recommendation of the United States Magistrate Judge, filed in the above-styled and numbered cause on December 7, 2005 (Docket No. 16). The cause was transferred to the Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1) and Local Court Rules 1(d) and (h) for review and issuance of a memorandum and recommendation regarding the disability benefits decision made by the Commissioner of the Social Security Administration ("Commissioner") under § 405(g) of the Social Security Act, 42 U.S.C. § 405(g). The Magistrate Judge recommended the decision of the Commissioner be affirmed and that judgment should be entered for Defendant against Plaintiff (Docket No. 16 at 13). After due consideration, the Court finds that the Magistrate Judge's Memorandum and Recommendation (Docket No. 16) should be ADOPTED IN ITS ENTIRETY and the Commissioner's decision should be AFFIRMED. Plaintiff's requests for reversal (Docket No. 9) are hereby DENIED.
BACKGROUND
Plaintiff Ruben Galindo initiated this action to seek review of the decision of the Commissioner under Social Security Act, 42 U.S.C. § 405(g). Galindo challenges the Commissioner's determination that he is not disabled and therefore not entitled to receive disability and Supplemental Security Income ("SSI") payments. Plaintiff filed an application for SSI payments on October 11, 2001. The Social Security Administration ("SSA") denied Galindo's application both initially and again upon reconsideration. An Administrative Law Judge ("ALJ") held a hearing on September 12, 2003, in which Plaintiff was represented by an attorney. On October 29, 2003 the ALJ determined that the plaintiff was not disabled. On February 18, 2005, the Appeals Council denied Plaintiff's request for review, making the finding of the ALJ the final decision of the Commissioner. Plaintiff appealed that decision to this Court and the Magistrate Judge entered a Memorandum and Recommendation denying his appeal and affirming the Commissioner's determination in this case. Galindo filed objections (Docket No. 20) to the Memorandum and Recommendation, and this Court now considers the Magistrate's recommendation in light of these objections.
Docket No. 16 at 1 (citing Transcript at 100-02, 478-80).
Transcript at 31-32, 489-92.
Transcript at 21.
Transcript at 21-28.
Transcript at 4-6.
Docket No. 16.
DISCUSSION
I. Standards of Review
A. Magistrate Judge's Memorandum and Recommendation
The Court reviews de novo the portions of the Magistrate Judge's Memorandum and Recommendation to which a party files objections within ten days of service. The Local Court Rules for the Western District of Texas require that the "written objections . . . specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections." Thus, the Court need not consider objections that are frivolous, conclusive, or general in nature. If there are no specific objections to a Magistrate Judge's Memorandum and Recommendation, the District Court is to review it for findings and conclusions that are either clearly erroneous or contrary to law. Plaintiff Galindo has filed objections to the Magistrate's Memorandum and Recommendation in this case. The Court considers and addresses these objections under a de novo standard, below.
LOCAL RULE R. 4(b) at App. C ("Assignment of Duties to United States Magistrate Judges").
Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
Docket No. 20.
Docket No. 16.
B. Commissioner's Disability Benefits Determination
The Court's review of the Commissioner's denial of disability benefits is limited to determining whether the Commissioner applied the proper legal standards to evaluate the evidence and whether the decision is supported by substantial evidence. If the proper legal standards have been applied, the Commissioner's final decision must be upheld if it is supported by substantial evidence. Substantial evidence is more than a scintilla, less than a preponderance, and such that a reasonable mind might accept as adequate to support a conclusion. The Court may not re-weigh the evidence, try the issues de novo, or substitute its judgment for that of the Commissioner.
See 42 U.S.C. § 405(g); Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002); Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001).
Richardson v. Perales, 402 U.S. 389, 401 (1971); Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000) (quoting Ripley v. Charter, 67 F.3d 552, 555 (5th Cir. 1995)).
Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000); Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993).
"A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings support the decision." However, the statutory requirement, as interpreted by the Fifth Circuit, dictates that a "court may not . . . examine only the evidence favorable to the Commissioner; it must also examine contrary evidence." A court thus must scrutinize the record in its entirety to determine the reasonableness of the decision reached and whether substantial evidence exists. Four elements are relevant in determining whether 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.
Boyd, 239 F.3d at 704.
Higginbotham v. Barnhart, 405 F.3d 332, 335 (citing Randall v. Sullivan, 956 F.2d 105, 109 (5th Cir. 1992)).
Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995) (citing Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991)).
II. Entitlement to Disability 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. Each aged, blind or disabled individual who meets certain income and resources limitations is entitled to receive supplemental security income. The terms "disabled" or "disability" refer to "the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months."
A claimant is considered disabled only if his physical or mental impairment or impairments are so severe that he is not only unable to 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.
A. Evaluation Process and Burden of Proof
To determine whether a claimant qualifies as disabled under the Act, the Commissioner uses a sequential, five-step inquiry, which ends if at any step the Commissioner finds that the claimant is or is not disabled. The burden is on the claimant to prove a disability under the first four parts of the inquiry: "1) whether the claimant is presently engaging in substantial gainful activity, 2) whether the claimant has a severe impairment, 3) whether the impairment is listed, or equivalent to an impairment listed in appendix I of the regulation, 4) whether the impairment prevents the claimant from doing past relevant work, and (5) whether the impairment prevents the claimant from performing any other substantial gainful activity." Once the claimant shows that she is unable to perform her previous work, the burden shifts to the Commissioner to show that there are other substantial gainful employment opportunities available that the claimant is not only physically capable of performing but also capable of maintaining for a significant period of time, taking into account her exertional and non-exertional limitations. If the Commissioner points to potential alternative employment, the burden shifts back to the claimant to prove that she is unable to perform the other work.
20 C.F.R. § 416.920(a)(4); Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
Leggett, 67 F.3d at 564 n. 2 (5th Cir. 1995) (citing 20 C.F.R. § 404.1520 (1995); Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994), cert. denied, 514 U.S. 1120, 115 S.Ct. 1984 (1995)).
Watson v. Barnhart, 288 F.3d 212, 217 (5th Cir. 2002).
B. Commissioner's Decision in this Case.
The Magistrate Judge reviewed the decision process of the Administrative Law Judge's decision in this case and found that the Commissioner's decision should be affirmed because there is substantial evidence to support it and it comports with the relevant legal standards. Plaintiff Galindo was a forty year-old male at the time of the ALJ's decision. He had an eleventh grade education and vocationally relevant unskilled heavy work experience in construction, and semi-skilled light work experience as a compactor operator. The ALJ found that Plaintiff alleged a disability beginning on or about March 26, 1999, due to a right upper extremity injury which Plaintiff sustained at work.
Docket No. 16 at 13.
Transcript at 23.
See id. at 25(noting Plaintiff's testimony which described a fragmented educational experience, with grades 1 through 3 completed in Mexico, and grades 8 through 11 completed in the United States). The ALJ noted this fact concerning Plaintiff's education. Id. at 23. Furthermore, Plaintiff's own testimony seems to indicate that he did in fact complete grade 11. Id. at 504.
Id. at 25.
Id. at 24.
Using the sequential five-step test established by the SSA to determine whether one has a compensable disability, the ALJ determined at the first step that Plaintiff had not engaged in substantial gainful activity since his alleged disability onset date. At the second step, the ALJ determined that Galindo's right should injury was a medically determinable "severe" impairment based upon the requirements in 20 C.F.R. §§ 404.1521 and 416.921. At the third step, the ALJ determined that Plaintiff's impairments did not meet or medically equal any impairments listed in Appendix 1, Subpart P, Regulation No. 4.
Id. at 27.
Id.
Id.
Because Plaintiff's severe impairments did not meet or equal one of the listed impairments, the ALJ moved to step four of the process. At step four, the ALJ considered whether Galindo had the residual functional capacity ("RFC") to perform his past relevant work or any other work available in the national economy. In doing so, the ALJ cited applicable regulations, including 20 C.F.R. §§ 404.1563, 404.1565, 404.1567, 416.963, 416.965, and 416.967. The ALJ considered Plaintiff's testimony, the objective medical evidence, the medical expert's testimony, and the opinions of the state agency consultants in determining Plaintiff's RFC.
Id. at 25.
Id. 25-26.
Id.
Id.
The ALJ found that the medical evidence provided by Plaintiff and by the testifying medical expert did not support Plaintiff's subjective complaints of pain of sufficient severity to be disabling under the applicable Regulations. The ALJ further found that no medical or other evidence supported Galindo's allegations of a mental impairment brought on by stress and frustration. The ALJ noted that Plaintiff's own testimony regarding numerous activities of a light nature which he undertook daily, undercut his assertions that he could not use his right hand at all. The ALJ's RFC assessment did account for limited use of the right upper extremity as only a helper hand.
Id. at 24-25.
Id. at 25.
Id. at 24.
Id. at 25.
Because Plaintiff could only use his right upper extremity as a helper hand, the ALJ found that Plaintiff could not perform the aforementioned past relevant work of a construction worker or compactor operator. Accordingly, the ALJ next considered whether the SSA could show that Plaintiff was capable of performing other jobs existing in significant numbers in the national economy, taking into account Plaintiff's age, education, work experience, and RFC. A vocational expert ("VE") testified that someone with Plaintiff's age, education, past work experience, and RFC could work as a parking lot attendant, ticket taker, or attendant. Based on the testimony of the VE, the ALJ found that Plaintiff could make a successful adjustment to work that existed in significant numbers in the national economy, and consequently that a finding of "not disabled" was proper.
Id.
Id.
Id. at 26.
Id.
C. Plaintiff's Objections To The Magistrate Memorandum and Recommendation
In his appeal from the Commissioner's decision, Plaintiff asserts a number of arguments which the Magistrate Judge addressed and found to be generally without merit. Plaintiff's objections are: 1) the ALJ gave inappropriate weight to the opinion of a non-treating, non-examining physician, 2) the ALJ improperly considered Plaintiff's credibility, 3) that the ALJ improperly failed to re-contact a treating physician to address alleged inconsistencies in the record, and 4) that Plaintiff's shoulder met the requirements of Listing 1.08. This Court will address these issues individually to determine whether the ALJ's decision was supported by substantial evidence. Because the first and last objection seem substantially related, and because the Magistrate Judge's MR addresses them together, this Court will consider them together, first.
1. Did the ALJ give improper weight to the opinion of a non-treating, non-examining physician, and improperly fail to clarify inconsistencies in the record?
Plaintiff first argues that the ALJ gave too much weight to the opinions of Dr. Pankowsky and the stage agency physicians, and insufficient weight to Dr. Misra, a physician who examined and treated Galindo. For the following reasons, this assertion must fail.
The law dictates that, in determining disability, the opinion of a treating physician should be accorded great weight. Furthermore, when an ALJ rejects, or gives very little weight to, the opinion of a treating physician, the Fifth Circuit has mandated a detailed analysis of the reasons based on a thorough evaluation of the evidence. As the Magistrate Judge points out, Plaintiff is unable to point out in his objections any part of the ALJ's analysis in which the opinions of Dr. Misra are discounted. Galindo seems to confuse this issue with the issue of whether the ALJ erred in finding that Galindo's injury did not meet Listing 1.08. Dr. Pankowsky never disagreed with Dr. Misra regarding any of Plaintiff's functional abilities. Likewise, the ALJ's calculation of Plaintiff's RFC in no way discounted statements of Dr. Misra. Because there is no showing that the ALJ actually discounted or rejected Dr. Misra's opinions, Plaintiff's assertion on this issue fails.
See Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000).
Newton, 209 F.3d at 453, 456.
Docket No. 20 at 1.
See id. (asserting incorrectly that the MR incorrectly found that Misra's statements regarding additional surgery were based on Plaintiff's statements and not objective findings). The MR does refer to Misra's evaluation of Plaintiff's overall condition and Misra's failure to assess Plaintiff's functional abilities.
Transcript at 517-19.
Id. at 24-25.
Additionally, Plaintiff's assertion that the ALJ was required to re-contact Dr. Misra because of inconsistencies in the record must also fail. No part of the ALJ's decision relies on any inconsistencies in Dr. Misra's reports. Plaintiff seems to be referring, again, to the fact that the ALJ found that Plaintiff's injury did not meet the requirements Listing 1.08.
See id. at 23-28.
Because there were no inconsistencies in the record, and because Plaintiff has failed to show that the ALJ discounted any of the treating physician's statements regarding Plaintiff's functional abilities, the ALJ's calculation of the RFC and subsequent finding of no disability are supported by substantial evidence. This argument is therefore without merit.
2. Did the ALJ improperly find Plaintiff to be not credible?
Plaintiff next makes the somewhat conclusory assertion that "[t]here is a question of Due Process in this matter." He asserts that the because the transcript does not reflect the translation of the Spanish interpreter present, the hearing evidence is confusing and therefore flawed, and remand is necessary. Plaintiff cites nothing to support the proposition that this, if true, would constitute a violation of Due Process. However, without even reaching the question of whether a confusing transcript might violate Due Process, this Court notes that the transcript of the hearing is not the least bit confusing. Evidence and testimony cited by the ALJ are easily located in the transcript, and Plaintiff offers no reading of the transcript that might reasonably be construed as "confusing."
Docket No. 20 at 1.
Id.
Id.
What Plaintiff appears to be arguing is that "badgering" by the ALJ lead to confused answers, upon which the ALJ's finding that Galindo was not credible was based. The Court has carefully examined the transcript for evidence that the ALJ "badgered" Mr. Galindo during his testimony. To support this claim of badgering, Plaintiff cites his own brief. An examination of the cited pages reveals that Plaintiff's chief complaints in regards to alleged badgering are that the ALJ asked Plaintiff questions about activities that normally require the use of two hands, about use of the right hand actually witnessed by the ALJ, and that on one instance Plaintiff was confused about the question being asked. An examination of the transcript reveals nothing more than an ALJ attempting to clarify to what extent Plaintiff could actually use his right hand.
Id. (citing Docket No. 9 at 12, 13).
Docket No. 9 at 12-13.
Transcript at 502-14.
An ALJ has the discretion to determine the debilitating nature of Plaintiff's symptoms. When, as here, the claimant makes subjective complaints of debilitating pain the ALJ may consider the claimant's daily activities to make a determination of credibility. Because nothing in the transcript supports an allegation of badgering, and because nothing in the transcript is confusing, the Court finds that the ALJ was pursuing a proper line of questioning. Substantial evidence supports the finding of no credibility, and consequently this assertion is also without merit.
Wren v. Sullivan, 925 F.2d 123, 128 (5th Cir. 1991).
Griego v. Sullivan, 940 F.2d 942, 945 (5th Cir. 1991).
3. Did Plaintiff's shoulder injury meet Listing 1.08?
Lastly, Plaintiff argues that he meets Listing 1.08, Pt. 404, Subpt. P, App. 1, concerning soft tissue injuries which are under continuing surgical management. Listing 1.08 describes an impairment, which if met, would merit a finding a disability. Specifically, 1.08 lists as an impairment "[s]oft tissue injuries (e.g., burns) . . . under continuing surgical management." The phrase "continuing surgical management," as used here "refers to surgical procedures and any other associated treatments related to the efforts directed toward the salvage or restoration of functional use of the affected part. It may include such factors . . . that delay the individual's maximum benefit from therapy." The Regulations further explain that "when there has been no surgical or medical intervention for 6 months after the last definitive surgical procedure, it can be concluded that maximum therapeutic benefit has been reached."
Docket No. 20 at 2. The Court notes that Listing 1.08 was not considered by either the testifying medical expert, Dr. Pankowsky, or the ALJ.
20 C.F.R. Pt. 404, Subpt. P, App. 1.08.
20 C.F.R. Pt. 404, Subpt. P, App. 1.00 (M).
20 C.F.R. Pt. 404, Subpt. P, App. 1.00 (N).
The burden is on Plaintiff at the first 4 steps of a disability inquiry, which includes at Step 3, whether the impairments meets or equals a listed impairment such a Listing 1.08. By Plaintiff's own admission, he had not seen a doctor in the same calendar year as his hearing, and at that time had no future appointments to see a doctor. Further, the record shows that at the time of the hearing Plaintiff's last physical examination was conducted more than one year prior. The ALJ accurately noted that at that examination Plaintiff was noted as being well developed and in no acute distress. These facts, coupled with Plaintiff's admission that he had not taken pain medication the week or so prior to the hearing, constitute substantial evidence that Plaintiff did not meet Listing 1.08. Therefore, the ALJ's finding that Plaintiff did not meet any listed impairments must be affirmed.
Leggett, 67 F.3d at 564 n. 2 (5th Cir. 1995) (citing 20 C.F.R. § 404.1520 (1995); Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994), cert. denied, 514 U.S. 1120, 115 S.Ct. 1984 (1995)).
Transcript at 507.
Transcript at 24.
Id.
Id. at 507.
Id. at 27.
CONCLUSION
Accordingly, the Court ORDERS that the Magistrate Judge's Memorandum and Recommendation (Docket No. 16) be ADOPTED IN ITS ENTIRETY.
It is further ORDERED that Plaintiff's requests for relief and remand be DENIED and that the Commissioner's decision be AFFIRMED.