Opinion
Civil Action No. 5:03-CV-234-C.
April 16, 2004
REPORT AND RECOMMENDATION
Plaintiff Edward G. Howard seeks judicial review of a decision of the Commissioner of Social Security, denying his application for Social Security disability benefits under Titles II and XVI of the Social Security Act. The United States District Judge, pursuant to 28 U.S.C. § 636(b), referred this case to the United States Magistrate Judge for report and recommendation, proposed findings of fact and conclusions of law, and a proposed judgment.
I.
A. Howard's points of error
Howard brings three points of error for the court's review. He contends the Commissioner's Administrative Law Judge (ALJ) failed to properly analyze his mental impairments, failed to fully and fairly develop the record, and failed to consider medical evidence submitted by examining physician Shelly McIntyre, M.D. This court has reviewed the administrative record and the arguments of both parties under the statutory substantial evidence standard and recommends that the District Court affirm the Commissioner's final decision.
B. The ALJ properly analyzed Howard's mental impairments
Howard contends that the ALJ did not analyze his mental impairment as required by the Commissioner's regulations and, in determining whether his mental impairment was severe at step two of the sequential evaluation process, failed to follow the "slight abnormality" standard required by Social Security Ruling (SSR) 96-3p.
The Commissioner utilizes a five-step sequential disability inquiry, under which the ALJ decides whether: (1) the claimant is not working in substantial gainful activity; (2) the claimant has a severe impairment; (3) the claimant's impairment meets or equals a listed impairment in Appendix I of the Regulations; (4) the impairment prevents the claimant from doing past relevant work; and (5) the impairment prevents the claimant from doing any other work. 20 C.F.R. § 404.1520, 416.920 (2003).
Ruling 96-3p directs that at step two of the sequential evaluation process, an impairment is considered "severe" if it significantly limits an individual's physical or mental abilities to do basic work activities, and is "not severe" if it is a slight abnormality that has no more than a minimal effect on the ability to do basic work activities. SSR 96-3p.
Howard's contentions are not supported by the record. In his decision, the ALJ found at step two of the sequential evaluation process that Howard's mental impairments were severe; therefore, Howard's first contention is without merit. (Tr. 16.)
Howard's second contention is likewise without merit because the ALJ specifically acknowledged his obligation to evaluate the degree of limitation caused by Howard's mental impairments. (Tr. 19.) The ALJ cited to 20 C.F.R. § 404.1520a and 416.920a, and in compliance with these regulations, considered the degree of limitation caused by Howard's mental impairments in activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. (Tr. 18-19.) See 20 C.F.R. § 404.1520a(c), 416.920a(c). The ALJ concluded that Howard's mental impairment did not restrict his activities of daily living, caused only a mild restriction in his ability to maintain social functioning, caused moderate difficulties in maintaining concentration, persistence, or pace, and had not resulted in episodes of decompensation for an extended duration. (Tr. 19.) This conclusion is supported by substantial evidence. ( See Tr. 33, 193, 201, 204-05.)
C. The ALJ was not required to order a consultative examination
Howard contends the ALJ should have ordered a consultative exam to determine whether his probable seizure disorder was disabling. It is well established that the claimant bears the burden of proof in establishing that he is disabled. See, e.g., Anderson v. Sullivan, 887 F.2d 630, 634 (5th Cir. 1989). However, in some circumstances, the ALJ may order a consultative examination in order to fully and fairly develop the record, but need not order such an examination unless the record establishes that it is necessary to enable him to make the disability decision. Brock v. Chater, 84 F.3d at 726, 728 (5th Cir. 1996); Pearson v. Bowen, 866 F.2d 809, 812 (5th Cir. 1989).
In this case, there was sufficient evidence in the record regarding Howard's possible seizure disorder to enable the ALJ to determine that the condition was not disabling. The ALJ specifically acknowledged that Howard had a probable seizure disorder and determined that his ability to work was reduced by the disorder. (Tr. 16, 18.) In this regard, the ALJ limited Howard's residual functional capacity to light work that would involve the lower end of detailed instructions and that would not involve work around unprotected heights and dangerous machinery. (Tr. 20-21.)
The ALJ's findings are supported by substantial evidence. As the ALJ noted, Howard testified that he drove his wife and children to school on a daily basis; thus, Howard's disorder did not impose significant limitations beyond those identified by the ALJ. ( See Tr. 19 ("The ability to drive on a schedule on a daily basis contradicts [Howard's] assertions that he frequently gets lost and that his `seizures' occur very frequently.")
D. The ALJ fully and fairly developed the record
Finally, Howard contends the ALJ erred in failing to consider a report by Dr. McIntyre, a treating but non-examining physician. Howard submitted Dr. McIntyre's report, dated April 16, 2003, after the hearing but before the ALJ issued his decision on May 8, 2003. Dr. McIntyre indicated in her report that Howard's mental condition had declined in the three months preceding her examination of Howard. (Tr. 244.) She stated that he was severely depressed, that his reasoning was grossly impaired, and that his responses indicated a decline in reasoning and functioning abilities. Dr. McIntyre also noted that Howard reported that he was recently evicted from his home, that he was experiencing problems with his daughter, and that he was unable to care for his family. ( Id.) Finally, she noted that she discussed the possibility of hospitalization with Howard and noted that he was "impaired and unable to work." ( Id.)
In arguing that the ALJ erred in failing to consider Dr. McIntyre's report and indicate the weight he accorded her report, Howard cites to SSR 96-5p and 20 C.F.R. § 404.1545(a). Howard's reliance upon the cited authorities is misplaced. Ruling 96-5p provides that an ALJ's decision must include an explanation of the consideration given to a treating physician's opinion. SSR 96-5p. Dr. McIntyre was not a treating physician; therefore, the ALJ was not obligated to explain his reasons for not adopting her opinion.
Under 20 C.F.R. § 404.1545(a), the observations of a claimant's physician may be used in determining a claimant's residual functional capacity. However, there is no requirement under the regulation that an ALJ discuss the weight accorded to each physician's opinion. On the other hand, the regulations obligate an ALJ to consider all medical evidence in determining the presence of a severe impairment, 20 C.F.R. § 404.1513(b). In this case, the ALJ indicated that he considered all of the evidence and further determined that Howard had depression, which he considered to be a severe impairment. (Tr. 16.) Thus, in regard to whether Howard's depression was severe, the ALJ did not make a determination that conflicted with Dr. McIntyre's report. Substantial evidence demonstrates that Howard's depression was not disabling. The evidence shows that Howard's depression was controlled with medication (Tr. 33, 204), that he worked during several episodes of severe depression (Tr. 203-04), that his depression would not affect his ability to carry out the mental demands of work (Tr. 193, 201), and that his prognosis was good (Tr. 205). Therefore, notwithstanding Dr. McIntyre's report, substantial evidence supports the Commissioner's finding that Howard's depression was not disabling. See, e.g., Vaughan v. Shalala, 58 F.3d 129, 131 (5th Cir. 1995) (fact that claimant continued to work despite impairments he contends are disabling is a relevant factor in disability determination); Epps v. Harris, 624 F.2d 1267, 1270 (5th Cir. 1980) (conditions controllable with medication are not disabling).
Finally, the Fifth Circuit has expressly rejected a rule that would require an ALJ to articulate specifically the evidence that supported his decision and discuss the evidence that was rejected. Falco v. Shalala, 27 F.3d 160, 163 (5th Cir. 1994.) Therefore, the ALJ was not required to specifically discuss each piece of evidence in his decision and did not err in not specifically discussing Dr. McIntyre's report.
II.
Based on the foregoing discussion of the issues, evidence and the law, this court recommends that the United States District Court affirm the decision of the Commissioner and dismiss Howard's Complaint with prejudice.
Pursuant to 28 U.S.C. § 636(b)(1), any party has the right to serve and file written objections to the Report and Recommendation within 10 days after being served with a copy of this document. The filing of objections is necessary to obtain de novo review by the United States District Court. A party's failure to file written objections within 10 days shall bar such a party, except upon grounds of plain error, from attacking on appeal the factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).