Opinion
CIVIL ACTION NO. 01-3417, SECTION "R"(5)
November 20, 2002
ORDER AND REASONS
This matter comes before the Court on plaintiff Barbara Chittenden's objections to the Report and Recommendation of the Magistrate Judge granting defendant's Motion for Summary Judgment. Having considered the record, the Magistrate's Report and Recommendation, plaintiff's objections thereto, and the applicable law, the Court concludes that plaintiff's objections are without merit. For the following reasons, the Court rejects plaintiff's objections and adopts the Magistrate's Report and Recommendation as its opinion in this matter.
I. Background
Plaintiff Barbara Chittenden, a deli worker, bagger, and housekeeper, initially applied for SSI benefits on April 27, 1998, alleging a disability as of September 3, 1997. This application was denied at the initial level and was not appealed. Plaintiff filed a second application for SSI benefits on August 23, 1999, again alleging a disability as of September 3, 1997. Plaintiff asserted in a contemporaneous Disability Report that a lack of arm strength and sensation, a herniated disc in the neck, and nerve damage in the arm and neck limited her ability to work. This second application was also denied. Upon plaintiff's request, hearings before Administrative Law Judges ("ALJ") took place on June 29 and September 12, 2000. At these hearings, plaintiff, who was represented by counsel, and two Vocational Experts ("VE") appeared and testified. The ALJ issued a written decision on September 25, 2000, concluding that plaintiff was not disabled within the meaning of the Social Security Act. The ALJ concluded that plaintiff had not engaged in substantial gainful activity since September 3, 1997, and that plaintiff suffered from severe impairments in the form of cervical radiculopathy, status post surgery for extensor tenosynovitis of the right wrist, and carpal tunnel syndrome of the right wrist. After noting that none of these impairments meet or equal the criteria of any impairment set forth in the Listing of Impairments, the ALJ determined that plaintiff is not entitled to benefits because she retains the residual functional capacity to perform her past work as a deli worker, bagger, and housekeeper. The Appeal Council denied plaintiff's request for review of the ALJ's decision, making the ALJ's decision the final decision of the Commissioner.
Plaintiff requests that the Court review and reverse this decision. Before the Magistrate, plaintiff argued, first, that the ALJ failed to give controlling weight to the opinions of her treating physician and, second, that the ALJ's decision improperly relied on a surveillance video that was not made available to plaintiff. The Magistrate considered and rejected these arguments. In her objections to the Magistrate's Report and Recommendation, plaintiff raises the same two issues. For the following reasons, the Court finds that the Magistrate adequately and properly addressed the issues plaintiff raises in his opposition.
II. Standard of Review
This Court reviews the Report and Recommendation of the Magistrate Judge de novo. See 28 U.S.C. § 636 (b)(1); FED. R. Civ. P. 72(b). The function of this Court on judicial review under 42 U.S.C. § 405 (g) is limited to determining whether there is
substantial evidence in the record to support the Commissioner's decision, and whether the Commissioner applied the appropriate legal standards in reaching the decision. Masterson v. Barnhart, 2002 VJL 31250588, *4, 309 F.3d 267 (5th Cir. 2002); see also Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995); Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993). The Commissioner's final decision must be upheld if it is supported by substantial evidence. See 42 U.S.C. § 405 (g). Substantial evidence is more than a scintilla, less than a preponderance, and such that a reasonable mind might accept a conclusion based thereon. See Spellman, 1 F.3d at 360. A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings exist to support the Commissioner's decision. See Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). The Court may not reweigh the evidence, try the issues de novo, or substitute its judgment for that of the Commissioner. See Masterson, 2002 WL 31250588, *5; Spellman, 1 F.3d at 360; Martinez, 64 F.3d at 173. Conflicts in evidence are for the Commissioner to resolve, not the courts. Masterson, 2002 WL 31250588, *5.
III. Discussion
A. Plaintiff's Claim Regarding Her Treating Physician
First, plaintiff asserts that the ALJ's analysis of the weight that should be accorded the opinions of her treating physician violated Social Security Ruling 96-2P and Fifth Circuit jurisprudence. Social Security Ruling 96-2p provides the standard for evaluating the opinion of a treating physician. The Ruling states, in pertinent part:
If a treating source s medical opinion is well-supported and not inconsistent with the other substantial evidence in the case record, it must be given controlling weight; i.e., it must be adopted. A finding that a treating source's medical opinion is not entitled to controlling weight does not mean that the opinion is rejected. It may still be entitled to deference and be adopted by the adjudicator.
Social Security Ruling 96-2p, July 2, 1996. The Fifth Circuit has held that "ordinarily the opinions, diagnoses and medical evidence of a treating physician who is familiar with the claimant's injuries, treatment, and responses should be accorded considerable weight." Loza v. Apfel, 219 F.3d 378, 395 (5th Cir. 2000). At the same time, a treating physician's opinions are not conclusive and may be assigned little or no weight when good cause is shown. Id.; Newton v. Apfel, 209 F.3d 448, 455-56 (5th Cir. 2000) (citing Brown v. Apfel, 192 F.3d 492, 500 (5th Cir. 1999)). An opinion that is brief and conclusory, that is unsupported by medically acceptable techniques, or that is contradicted by other evidence may be assigned little weight. Newton, 209 F.3d at 456; Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987).
The ALJ decided to assign little weight to the opinion of plaintiff's treating physician, Dr. Cracco. The ALJ supported this decision as follows:
Under SSR 96-2p, I assign little weight to the conclusions/opinions of claimant's treating orthopedist Alain Cracco. Orthopedist Cracco . . . failed to document her symptoms, response of condition to medication/treatment modalities or submit objective medical evidence in the form of radiological findings, range of motion maneuvers, neurological examinations or neurophysiological tests to support his conclusions/opinions. . . . The treating surgeon, Dr. George, noted her range of motion was excellent. . . . His opinion is sufficiently at variance with Dr. Cracco as is the well documented examination by Dr. Keppel. Accordingly, controlling weight is not given to Dr. Cracco's assessment.
(Tr. 23.)
Under SSR 96-2p as well as Fifth Circuit precedent, the ALJ is entitled to give the opinions of a treating physician little weight if such opinions are not consistent with substantial evidence in the record. The ALJ explained that it afforded Dr. Cracco's opinions little weight because they were not consistent with those of Drs. George and Keppel. Drs. George and Keppel agreed with Dr. Cracco that plaintiff suffers from certain injuries, including lumbar radiculopathy, ( Id. at 237), and mild carpal tunnel syndrome ( Id. at 189). But on the critical issue of whether plaintiff is capable of performing her past work as a deli worker or housekeeper, Dr. George determined that she could. ( Id. at 151-154.); see Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988) (holding that the Commissioner bears the burden of establishing that the claimant is capable of performing substantial gainful activity). Dr. George's findings were corroborated by Dr. Keppel. (Tr., at 186-89.) Again, the Court notes that "conflicts in the evidence are for the Commissioner and not the courts to resolve." Masterson, 2002 WL 31250588, *5. This Court need only determine that there is substantial evidence in the record supporting the ALJ's determination that Dr. Cracco's testimony is not consistent with other evidence. In light of the medical opinions of Drs. George and Keppel, the Magistrate determined that the ALJ's decision is supported by substantial evidence. This Court agrees.
B. Plaintiff's Claim Regarding The Surveillance Video
Plaintiff also objects to the ALJ's reliance on a surveillance videotape that plaintiff alleges she never saw. Plaintiff styles this objection as a failure on the part of the ALJ to fully and fairly develop the record. In its decision, the ALJ states as follows:
[Plaintiff's] assertions regarding severely limited activities of daily living such as requiring assistance with bathing, grooming, dressing, and feeding; assistance in housekeeping; shopping; driving and climbing stairs in her apartment reported to vocational counselor Ms. Huhner are not credible in light of the video tapes of her fixing her daughter's hair and assisting a gentlemen in getting up after he had fallen made by Louisiana Worker's Compensation Corporation.
(Tr. at 22.)
At the outset, the Court notes that formal rules of evidence do not apply to administrative hearings. The ALJ does, however, have "a duty to develop the facts fully and fairly relating to an applicant's claim for disability benefits." Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995). Breach of this duty supports a finding that the ALJ's decision is not substantially justified. Id. But reversal of the ALJ's decision "is appropriate only if the applicant shows that [she] was prejudiced." Id.
Here, plaintiff makes no showing that the ALJ's reliance on the videotape caused her any prejudice. To the extent that the ALJ relied on the videotape at all, it did so only to question the credibility of plaintiff's assertions that she was unable to conduct such routine activities as bathing and dressing. The ALJ's decision to deny benefits turned not on its finding that plaintiff can bath and dress, but on its finding that plaintiff's injuries do not prevent her from performing her past work. The videotape was not essential to making this determination because, as previously mentioned, at least two doctors cleared plaintiff for medium level work like that performed by a housekeeper. The Court therefore concludes, as did the Magistrate, that the ALJ's decision is supported by substantial evidence.
The Court similarly finds that plaintiff has failed to make a showing that the three inaudible sections of the administrative hearing transcript caused plaintiff prejudice or otherwise preclude meaningful review. See Williams v. Barnhart, 289 F.3d 556, 558-59 (8th Cir. 2002).
IV. Conclusion
For the foregoing reasons, the Court REJECTS plaintiff's objections, APPROVES and ADOPTS the Magistrate Judge's Report and Recommendation, GRANTS the Commissioner's motion for summary judgment, and DENIES plaintiff's motion for summary judgment.