Opinion
Civil Action No. SA: 03-CA-0914-XR.
June 30, 2005
ORDER
On this date the Court considered the United States Magistrate Judge's Report and Recommendation, filed December 3, 2004, and Plaintiff's Objections, filed December 13, 2004. After careful consideration, the Court will DENY Plaintiff's Objections to the Report and Recommendation, and will ACCEPT the Commissioner's decision and DISMISS Plaintiff's complaint.
Standard of Review
When a party objects to the Magistrate Judge's Report and Recommendation, the District Court conducts a de novo review. 28 U.S.C. § 636(b)(1).
Background
David B. McClatchy (Plaintiff) was 43 years old at the time he initially filed for disability benefits. He graduated from El Campo High School in 1978 and has worked in the oilfield and industry as a truck driver at various times. Plaintiff's disability claims stem from a trucking accident that occurred on December 12, 1990, when Plaintiff's 18-wheeler rolled over. Plaintiff was hospitalized at Brackenridge Hospital, where X-rays revealed a displaced hemipelvic injury. Plaintiff also was found to have a fractured jaw and ruptured bladder. Plaintiff was discharged on January 9, 1991. The record shows that he worked as an oilfield crew chief for five months in 1993. Plaintiff was incarcerated from 1994 to 2001, during which time his treatment was provided by the Texas Department of Criminal Justice (TDCJ) Institutional Division. While imprisoned Plaintiff continued to experience accident-related pain in his lower back, right elbow, and knees. After his release from prison Plaintiff was diagnosed with degenerative osteoarthritis in his right elbow and right hip, a degenerative disc disease of the lumbar spine, and various degenerative knee problems.
Plaintiff filed an application for disability insurance benefits and Supplemental Security Insurance Benefits on February 28, 2001, alleging disability beginning December 6, 1990. Plaintiff was denied benefits initially and on reconsideration. A hearing was held on October 10, 2002 in San Antonio, Texas before Administrative Law Judge Bernard McKay (the ALJ). Testimony was heard at the hearing from the Plaintiff as well as Vocational Expert Judith Harper. Plaintiff testified that he suffers from back and elbow pain, has trouble walking long distances, is unable to sit for extended periods of time without getting up, and has bladder control problems. Plaintiff also indicated that he takes the drug Wellbutrin to treat depression. Vocational Expert Harper testified that a hypothetical person who could lift up to 20 pounds occasionally and 10 pounds regularly, who should avoid activities such as crawling, stooping, or crouching, and who needed to be able to sit or stand while at work could perform entry level light unskilled work as a linen supply load builder or an assembler of small products.
On March 19, 2003, the ALJ ruled that Plaintiff was not disabled. Plaintiff requested review by the Appeals Council but was denied on August 22, 2003. Subsequently, Plaintiff brought the present action before this court. Plaintiff's Original Complaint alleged that: (1) the decision of the ALJ was not supported by substantial evidence; and (2) the ALJ failed to apply the proper legal standards to Plaintiff's claim. The matter was referred to United States Magistrate Judge Nancy Stein Nowak for review. On December 3, 2004 the Magistrate Judge filed a Memorandum and Recommendation finding that: (1) substantial evidence did support the ALJ's determination that Plaintiff was not disabled under the Social Security Act; (2) the decision was in accord with relevant legal standards. The Magistrate Judge recommended that the complaint be dismissed.
Analysis
Standard of Review
When a party objects to an ALJ's decision to deny disability benefits, the Court is limited to a determination of whether the decision is supported by substantial evidence and whether the ALJ applied the proper legal standard in evaluating the evidence. Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as satisfactory to support a conclusion. Id. A finding that there is no "substantial evidence" to uphold an ALJ's decision should occur only if no credible evidentiary choices or medical findings support the decision. Id. This Court may not re-weigh the evidence, try the issues de novo, or substitute its judgment for that of the ALJ. Id.
To determine whether a Plaintiff is disabled, the ALJ uses a five-step sequential evaluation. 20 C.F.R. § 404.1520(b-e); Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994). First, if a party has been gainfully employed since the alleged disability began, they are not disabled. Id. Second, an individual who does not have a "severe impairment" will not be found disabled. Id. Third, if the party meets conditions listed in the code they are considered disabled, but if they do not, the analysis progresses to step four. At step four, the ALJ will ascertain the party's residual functional capacity (RFC) and determine whether the party can perform their past relevant job duties. Id. If they can perform their previous work, they are not disabled. Finally, if the party cannot perform their past work, factors such as age, experience, education, past work, and RFC will be considered to determine whether an adjustment can be made to other work. Id. at § 404.1520(e). In the fifth step, the burden is on the Commission to prove the Plaintiff can perform relevant work. Boyd v. Apfel, 239 F.3d 698, 704-705. If the Commission carries this burden, the burden then shifts to the Plaintiff to prove they cannot perform the work suggested. Id.; Shalala, 38 F.3d at 236.
The Administrative Law Judge's Ruling
The ALJ's decision that the Plaintiff is not disabled, made after step five of the evaluation process, is supported by substantial evidence. At step one the Plaintiff was found to not be engaged in gainful work. At steps two and three he was found to be suffering from impairments that were severe, but did not equal a listed impairment in Appendix 1, Subpart P, Regulation No. 4. Therefore the ALJ moved to a consideration of steps four and five, which require a determination of the subject's RFC based upon all impairments, both severe and non-severe.
Physical functional evaluation assessments of the Plaintiff were performed by Dr. Bob Dodd, M.D. and Dr. Grethe Wik, D.O., in July and August 2001. The ALJ noted that Drs. Dodd and Wik concluded that the Plaintiff retained the ability to: lift and carry 20 pounds occasionally and ten pounds frequently, stand or walk for 6 out of 8 hours, push or pull with both the upper and lower extremities, and occasionally kneel, crouch, or crawl. The AJL accordingly found that the Plaintiff was capable of performing light work. The ALJ conducted a lengthy discussion of Plaintiff's medical records, and noted that while in prison Plaintiff worked as a baker and bookkeeper, was playing basketball when he injured his knee, and after prison was attending classes at St. Phillip's College.
Once an RFC determination has been made, step four calls for a consideration of whether or not the Plaintiff retains the ability to perform his past work. Since Plaintiff's past jobs in oilfields and as a truck driver required medium to heavy exertion, he was found incapable of performing such work. At this point, step five, the burden shifts to the Social Security Administration to show that there are other jobs existing in significant numbers in the national economy appropriate for a worker of the Plaintiff's age, experience, education, and RFC. Vocational Expert Judith Harper testified that work consistent with such factors could be found as a linen supply load builder, assembler of small products, or parking lot attendant. Plaintiff was therefore found not to be disabled.
Plaintiff's Objections to the Magistrate Judge's Recommendation
Plaintiff's objections to the Magistrate Judge's recommendation are threefold. The first claims that the ALJ failed to properly account for the Plaintiff's nonexertional impairments. Plaintiff specifically objects to the Magistrate Judge's finding that "Plaintiff has not proffered any evidence which proves that his nonexertional impairments actually interfere with his ability to perform work activities." This objection really contains two separate but related arguments. The first is that the ALJ erred in labeling Plaintiff's nonexertional limitations "not severe." A limitation is "not severe" within the meaning of the Social Security Act and Regulations if it does not impose significant restrictions on the ability to perform basic work activities. 20 CFR § 404.1521. Although Plaintiff offered evidence of nonexertional impairments (namely that he was depressed, in pain, and had a hard time reading), this Court believes that the ALJ's decision to label such impairments "not severe" is supported by substantial evidence. The record indicates that while in prison the Plaintiff worked as a baker and bookkeeper, and after his release he attended classes at St. Phillip's College. Both are work type activities that support the ALJ's conclusion that Plaintiff's non-exertional limitations were not "severe" within the meaning of the Social Security Act and Regulations. In addition, the Regulations contemplate and allow for non-gainful activities to be considered as evidence of a person's ability to perform work activities. ("Even if the work you have done was not substantial gainful activity, it may show that you are able to do more work than you actually did." 20 CFR § 404.1571.) Plaintiff's second related argument is that the ALJ failed to include all nonexertional limitations in the RFC assessment. There is no doubt that the ALJ should consider all of Plaintiff's limitations, both exertional and nonexertional. (see Carrier v. Sullivan, 944 F.2d 243, 257 (5th Cir. 1991): "It is, of course, improper for an ALJ not to consider a plaintiff's subjective complaints of pain.") However, the ALJ's report makes clear that he did consider Plaintiff's nonexertional limitations in the RFC. At various points in his report the ALJ wrote: "In making this assessment [the RFC], the [ALJ] must consider all symptoms, including pain"; "The claimant alleges an inability to do all work activity due to back pain, hip pain, knee pain, and depression"; "[RFC] is defined . . . after considering the effects of physical and/or mental limitations" (emphasis added). Plaintiff's contention seems to be not that the ALJ failed to consider nonexertional limitations, but rather that he did not weigh them to the extent Plaintiff wished. Since this Court is not the initial trier of fact, we may not reweigh the evidence. Boyd, 239 F.3d at 704. Our inquiry is limited to determining whether or not substantial evidence supports the ALJ's findings. Id. For the reasons discussed above, the Court believes it does.
Plaintiff's second objection centers around the failure of the ALJ to order a medical examination of Plaintiff's purported mental and psychological impairments. The Magistrate Judge concluded that such an examination was unnecessary for the ALJ to determine if the impairments were disabling. This Court agrees. The Fifth Circuit has indicated that a medical examination is only required if "the record establishes that such an examination is necessary to enable the [ALJ] to make the disability decision." Haywood v. Sullivan, 888 F.2d 1463, 1472 (5th Cir. 1989), citing Turner v. Califano, 563 F.2d 669, 671 (5th Cir. 1977). Plaintiff's medical records contained sufficient information to provide the ALJ with the information necessary to make a decision without an examination. A June 2000 record, for example, indicates that Plaintiff "does not have a prior history of psychiatric treatment, suicide attempts, self injury or mental impairment." A mere diagnosis, without a resulting functional restriction, does not establish disability. Barajas v. Heckler, 738 F.2d 641, 644 (5th Cir. 1984). In addition, the record indicates Plaintiff had engaged in work and work-type activities in the past despite his alleged mental and psychological impairments. Such evidence supports the ALJ's finding that the Plaintiff was not disabled. A medical examination at government expense was therefore unnecessary.
Plaintiff's third objection is to the Magistrate Judge's finding that "the ALJ's decision adequately explains the basis for his conclusion." The Court takes this to be an objection to the ALJ's finding that Plaintiff's allegations regarding his limitations were not totally credible, as the complete sentence Plaintiff partially quotes from the Magistrate Judge's recommendation reads "Furthermore, the ALJ's decision adequately explains the basis for his conclusions regarding plaintiff's credibility" (emphasis added). The Court can do little here but note that much of the ALJ's decision can be taken as an explanation for his conclusion. He discussed Plaintiff's own testimony and engaged in a lengthy evaluation of the medical record at length, noting how both seemed to contradict Plaintiff's allegation that he was disabled. Such an exercise serves as an adequate explanation for the ALJ's determination.
Conclusion
Plaintiff's objections to the Report and Recommendation of the Magistrate Judge are DENIED, the recommendation of the Magistrate Judge is ACCEPTED, and the Plaintiff's Complaint is DISMISSED.