Opinion
No. 00-0924, SECTION "R" (1).
November 20, 2000.
ORDER AND REASONS
This matter comes before the Court on plaintiff Jabbar Franklin's objections to the Report and Recommendation of the Magistrate Judge, granting defendant's Motion for Summary Judgment. Having considered the record, the Magistrate Judge's decision, plaintiff's objections, and the applicable law, the Court concludes that plaintiff's objections are without merit. For the following reasons, plaintiff's objections are REJECTED, the Magistrate Judge's Report and Recommendation is APPROVED and ADOPTED by the Court as its opinion in this matter, and plaintiff's complaint is DISMISSED.
I. Background
Plaintiff Jabbar Franklin applied for disability income benefits on September 10, 1996, alleging a disability since August 15, 1996 due to a nervous condition, headaches, and blurry vision. Plaintiff's request was denied on October 31, 1996, and his request for reconsideration was denied as well. The Administrative Law Judge (ALJ) held a hearing on April 16, 1997, at which plaintiff was represented by counsel. The ALJ denied plaintiff's claim on January 21, 1998, and the Appeals Council denied plaintiff's request for review on January 19, 2000. This denial made the ALJ's decision the final decision of the Commissioner. Plaintiff requests that the Court review and reverse this decision.
The Administrative Law Judge ("ALJ") concluded that plaintiff was not disabled because when the ALJ considered plaintiff's impairments, residual functional capacity, age, education, work experience, and the vocational expert's testimony he found that there are significant number of jobs in the national economy that plaintiff is capable of performing. (Tr. 15.) In reviewing the ALJ decision, the Magistrate Judge found that substantial evidence in the record supported the ALJ's finding that plaintiff was capable of performing all work related activities, except that he must be in a job with "gentle" supervision, minimal contact with the public, and that accommodates his borderline IQ of 77 (Tr. 15.) Plaintiff now objects to the Magistrate Judge's conclusions. He claims that the Magistrate Judge erroneously upheld the ALJ's failure to evaluate plaintiff under Listing 12.O5C and 112.05D of 20 C.F.R. Part 404. Plaintiff also contends that the ALJ's failure to complete a psychiatric review technique form ("PRTF") constitute reversible error.
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.Pr. 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. See Martimez 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 Spellman, 1 F.3d at 360; Martinez, 64 F.3d at 173. Conflicts in evidence are for the Commissioner to resolve, not the courts. See Patton v. Schweker, 697 F.2d 590, 592 (5th Cir. 1983)
III. Discussion
With respect to the Magistrate Judge's conclusions regarding plaintiff's impairments, the Court finds that the Magistrate Judge's findings accurately reflect the evidence in the record. The Court also finds that the Magistrate Judge adequately and properly addressed the issues plaintiff raises in his opposition.
A. Plaintiff's Claim Regarding Conflicting IQ Tests
First, plaintiff argues in his opposition that the ALJ erred in rejecting the diagnosis by Christian Scott, Ph.D, that plaintiff possessed a full scale IQ score of 69. The ALJ is responsible for determining the level of the claimant's residual functional capacity. See Villa v. Sullivan, 895 F.2d 1019, 1023 (5th Cir. 1990). Although medical opinions are factors in determining disability, the ALJ is responsible for ascertaining disability status. See 20 C.F.R. § 404.1527(e)(l). The ALJ should examine the claimant's complete medical record, normally giving controlling weight to the treating physician's medical opinion. See 20 C.F.R. § 404.1527(d)(2). However, when there are inconsistencies between medical records, the treating source must be evaluated by a number of factors, such as the treatment relationship and the consistency and support of the opinion. See 20 C.F.R. § 404.1527(d)(2). Moreover, it is established within the Fifth Circuit that the ALJ may give less weight, little weight, and even no weight to a physician's opinion when his statement is so brief and conclusory that it lacks strong persuasive weight or it is otherwise unsupported by the evidence. See 20 C.F.R. § 404.1527(d).
The medical report by Dr. Scott, a psychologist, suggested mild mental retardation. (Tr. 98.) The report also stated that "Mr. Franklin was minimally cooperative during the evaluation." (Tr. 98.) In rejecting Dr. Scott's diagnosis of a full scale IQ score of 69, the ALJ noted that the evaluation is inconsistent with the other medical evidence and the evaluation was made after the hearing had been held. (Tr. 15.) The ALJ supported the rejection of Dr. Scott's evaluation by considering other evaluations by Dr. Wesley J. Brockhoeft and Dr. Nathan M. Lubin that resulted in full scale IQ scores of 76 and 77, respectively.
The Magistrate Judge further noted that the IQ score result from Dr. Scott was not accompanied by any discussion of the validity of the score and was therefore not a valid score under the regulations. ( See Maj. J. Report and Recommendation at 15.) The Magistrate Judge also noted that Franklin had previously refused to cooperate on an IQ test administered in 1994 and that the examiner of this test noted that his answers suggested deliberate misresponding. See id.
20 C.F.R. Part 404, Subpt. P, App. 1, § 12.00D states "[T]he process of taking a standardized test requires concentration, persistence and pace; performance on such tests may provide useful data. Test results should, therefore, include both the objective data and a narrative description of clinical findings. Narrative reports of intellectual assessment should include a discussion of whether or not IQ scores are considered valid and consistent with the individual's developmental history and degree of functional restriction."
Plaintiff argues that the ALJ had a mandatory duty to seek clarification and additional evidence from Dr. Scott before rejecting the IQ test results. The Fifth Circuit recently issued a decision that at first glance seems to support plaintiff's argument. In Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. April 25, 2000), the Fifth Circuit stated:
if the ALJ determines that the treating physician's records are inconclusive or otherwise inadequate to receive controlling weight, absent other medical opinion evidence based on personal examination or treatment of the claimant, the ALJ must seek clarification or additional evidence from the treating physician in accordance with 20 C.F.R. § 404.1512(e).
However, the Fifth Circuit made clear that the analysis in Newton is not applicable in cases where there is "competing first-hand medical evidence" and the ALJ makes a factual determination that one doctor's opinion is more well-founded than another. See id. at 458 (comparing Spellman, 1 F.3d 357). Therefore, the ALJ may freely reject the opinion of any physician when the evidence supports a contrary conclusion. See id. at 455 (citing Paul v. Shalala, 29 F.3d 208, 211 (5th Cir. 1994)
In the present case, the ALJ rejected the IQ score results presented by Dr. Scott based on the competing medical opinions offered by Dr. Brockhoeft and Dr. Lubin. Further, the record indicates that plaintiff previously refused to cooperate on an IQ test administered in 1994 and that the examiner of this test noted that plaintiff's answers suggested deliberate misresponding. Further, Dr. Scott described him as "minimally" cooperative. This evidence suggests that he may have misresponded in the IQ test performed by Dr. Scott as well, which supports the ALJ's reliance on the previous IQ scores as more reliable in determining whether the plaintiff had any mental impairment. Because the ALJ reasonably relied upon IQ scores that indicate plaintiff's IQ is above 70, Listing 12.05C does not apply to plaintiff because it requires an IQ of 70 or below. Accordingly, the Court finds that there is substantial evidence in the record supporting the ALJ's decision to not evaluate plaintiff under Listing 12.05C and 12.05D.
B. Plaintiff's Claim Regarding the Failure to Fill Out a PRTF
In his second claim, plaintiff argues that the ALJ failed to complete a PRTF as required by the regulations. See 20 C.F.R. § 416.920(D). The defendant agrees that the ALJ was required to complete such a form, but contends that it was only a procedural defect and not reversible error.
To support its position, the defendant cites McGehee v. Charter, 83 F.3d 418, at *6 (5th Cir. 1995) (unpublished). In McGehee, the ALJ failed to complete the PRTF. Despite this failure, the Fifth Circuit concluded that the "ALJ's decision is adequately supported by the record, and reflects due consideration of the various aspects of McGehee's mental condition." Id. Therefore, remand was not necessary to correct the procedural impediment. Id. Similarly, the Magistrate Judge in this case concluded that remand was not necessary because the ALJ's findings are supported by the record. ( See Maj. J. Report and Recommendation at 12.)
Fifth Circuit Rule 47.5.3 states that "[u]npublished opinions issued before January 1, 1996, are precedent." See also Conoco, Inc. v. Director, O.W.C.P., 194 F.3d 684, 689 n. 2 (5th Cir. 1999).
In his opposition, plaintiff argues that the failure of the ALJ to complete the PRTF requires reversal and remand, citing Gutierrez v. Apfel, 199 F.3d 1048 (9th Cir. 2000), as persuasive authority. In Gutierrez, the Ninth Circuit held that when there is a colorable claim of mental impairment, the failure of the ALJ to complete a PRTF requires remand to the Social Security Administration. See id. at 1051. In Gutierrez, the Ninth Circuit did not define what constituted a colorable claim of impairment; however, the court, in deciding to remand, concluded that the evidence as a whole aid not compel the ALJ's finding. See id. at 1050.
The ALJ in Gutierrez heard testimony from Dr. Martinez, the treating physician, that the plaintiff's activities were limited by "fatigue, uncontrollable crying episodes, inability to concentrate, anxiety, excessive fear of being alone in public, and by physical pain." Id. at 1050. Dr. Dusay, appointed by the ALJ to review the plaintiff's medical records, concluded from these records that plaintiff's personality disorders were not likely to exceed twelve months, the durational requirement for disability benefits under 42 U.S.C. § 423(d)(1)(A). See id. Relying upon the opinion of Dr. Dusay, the ALJ concluded that the plaintiff suffered from a serious mental impairment but was expected to recover within twelve months. See id. The Ninth Circuit disagreed with the ALJ's decision to give equal or greater weight to Dr. Dusay's opinion because Dr. Dusay had never examined the plaintiff. See id. Therefore, the court concluded that Dr. Dusay's opinion was not entitled to as much weight as the opinion of the treating physician. See id.
Unlike the evidence in Gutierrez, the ALJ's decision in this case is adequately supported by the record. The ALJ relied on the opinion of doctors who had examined the plaintiff. In rejecting the opinion of Dr. Scott, the ALJ placed greater emphasis on the opinions of Dr. Brockhoeft and Dr. Lubin, a proper exercise of his discretion. See Newton, 209 F.3d at 455.
In addition, the ALJ specifically considered the Part B criteria of Listing 12.08 regarding personality disorders in reaching his decision that none of the plaintiff's impairments, either singularly or in combination, met or equaled the criteria of a listing impairment. (Tr. 12.) The ALJ's findings are supported by testimony of a vocational expert that there were a significant number of jobs in the national economy that plaintiff was capable of performing. Furthermore, the ALJ's findings are supported by the findings of medical and psychological consultants with Disability Determination Services, who completed a PRTF in. 1996 during the disability determination process. (Tr. 65-67.)
Therefore, the ALJ's decision is adequately supported by the record and reflects due consideration of the various aspects of plaintiff's mental condition. The Court therefore finds that the ALJ's failure to complete the PRTF form is not reversible error.
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, DENIES plaintiff's motion for summary judgment, and DISMISSES plaintiff's claims.