ORDER ACCEPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

XAVIER RODRIGUEZ, District Judge

On this date the Court considered the United States Magistrate Judge's Memorandum and Recommendation (docket number 15) in the above numbered and styled cause, and the Plaintiff's Objections to the Report and Recommendation. After careful consideration, the Court will accept the Magistrate Judge's recommendation, overrule the objections, and affirm the Commissioner's denial of disability benefits.

Standard of Review

When a party objects to a Magistrate Judge's Report and Recommendation, the District Court conducts a de novo review. 28 U.S.C. § 636(b)(1).

Background

The Plaintiff filed an application for social security benefits on or about July 16, 2001. On July 17, 2003, an Administrative Law Judge (ALJ) determined that Plaintiff was not disabled and that decision was ultimately affirmed by the Appeals Council. On December 23, 2003, the Plaintiff filed his Original Complaint seeking judicial review of the Social Security Administration's denial of his application. 42 U.S.C. § 405(g). The Plaintiff alleged that: (1) the Commission's decision was not supported by substantial evidence; and (2) the Commission failed to apply the proper legal standards. The Plaintiff seeks a reversal of the SSA decision.

This matter was referred to the United States Magistrate Judge, who submitted a Memorandum and Recommendation on August 2, 2004. In his MR, the Magistrate Judge concluded that the ALJ's decision was supported by substantial evidence, and that the correct legal standards were applied.

On August 10, 2004, the Plaintiff timely filed his Objections to the MR. The Plaintiff argues that substantial evidence does not exist to support the ALJ's conclusion that Plaintiff is able to perform modified medium work. Plaintiff argues that the ALJ reached this conclusion by giving more weight to the opinion of Dr. Po-Ming Fung, an internal medicine consultative examiner, than to the opinion of Dr. James Ross, another consultative examiner.

Analysis and Discussion

A. An ALJ's decision will be reversed only if the decision is not supported by substantial evidence.

An ALJ's decision will be reversed only if the decision is not supported by substantial evidence. Shave v. Apfel, 238 F.3d 592 (5th Cir. 2001). A review of the denial of disability benefits is limited to determining whether the decision is supported by substantial evidence in the record and whether the proper legal standards were used in evaluating the evidence. Bowling v. Shalala, 36 F.3d 431 (5th Cir. 1994). In applying the "substantial evidence" standard, a Court may not reweigh the evidence in the record, nor try the issues de novo, nor substitute the Court's judgment for the SSA's, even if the evidence preponderates against the SSA's decision. Id. at 434. This is so because "substantial evidence" is less than a preponderance but more than a scintilla. Id.

B. The ALJ's review of the evidence

The ALJ reviewed that Plaintiff suffers from back problems, diabetes, depression, and Dr. Ross diagnosed him with "peripheral neuropathy and diabetic retinopathy." Dr. Ross opined that Plaintiff was able to sit and stand for only very limited distances, and also opined that Plaintiff should do no lifting due to a L5-S1 disc herniation. Dr. Fung opined that Plaintiff was able to squat and bend, and there was no muscle weakness. Dr. Fung observed that no x-rays indicated the presence of a herniated disc, and that Plaintiff was able to perform work at a medium exertional level. Dr. Fung opined that there was no evidence of opthalmological complications from Plaintiff's diabetes.

The Court acknowledges that the medical evidence in this case differs greatly. However, the ALJ has discretion to weigh the credibility of the witnesses. Conflicts in the evidence, including conflicts among the various experts, are for the ALJ to resolve. Carey v. Apfel, 230 F. 3d 131, 135 (5th Cir. 2000). As stated above, this Court's review is limited to determining whether the ALJ decision is supported by substantial evidence in the record and whether the proper legal standards were used in evaluating the evidence. Bowling v. Shalala, 36 F.3d 431 (5th Cir. 1994). This Court is not otherwise permitted to substitute its own judgment for the ALJ's. The ALJ's determination was supported by more than a scintilla of evidence and was reached by the application of proper legal standards, accordingly the ALJ's findings are conclusive. This is not a case where a treating physician's opinion should have been given greater or controlling weight than the opinion of a non-treating physician. In this case both medical doctors were non-treating, consultative physicians. Plaintiff also complains that the ALJ failed to sufficiently explain why he found one consultative examiner was entitled to greater weight than the other. The Court does not agree that the ALJ failed to fully explain his decision-making process. He fully recited both doctors findings and found Dr. Fung more credible. Although, an ALJ who rejects the opinion of a treating physician must explain his reasons for doing so, Social Security Ruling (SSR) 96-6p and 20 CFR §§ 404.1527 and 416.927 merely require that the ALJ and Appeals Council reflect that consideration was given to any medical consultant's opinion.

C. A review of the remainder of the Magistrate Judge's Memorandum and Recommendation finds its reasoning sound and neither clearly erroneous nor contrary to law.

Other than the objection addressed above, no party made any further objections to the Magistrate Judge's Memorandum and Recommendation. Accordingly, the Court need not conduct a de novo review of the remaining issues addressed in the Report and Recommendation. See 28 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings and recommendations to which objection is made."). The Court has reviewed the remaining portions of the Memorandum and Recommendation and finds its reasoning to be neither erroneous nor contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5^th Cir.), cert denied, 492 U.S. 918 (1989).

Conclusion