Opinion
Civil Action No. SA: 04-CA-0375-XR.
June 8, 2005
ORDER
On this date the Court considered the United States Magistrate Judge's Report and Recommendation in the above-numbered and styled cause, and the plaintiff's objections to the report. After careful consideration of the record and of plaintiff's objections, the Court will ACCEPT the Magistrate Judge's recommendation and AFFIRM the Commissioner's denial of disability benefits.
I. Background
Plaintiff, Bobbie Rabel, was 48 at the date of the hearing. She has a GED education and was previously employed as a customer service representative and bookkeeper. Plaintiff's alleged disability began on March 20, 2001 after her second spinal surgery. Plaintiff had undergone her first surgery in April 2000 after problems with right-hand parenthesis and limited neck motion. The second surgery was intended to revise the first because there was not a solid fusion and there were loose screws in her spine. Plaintiff then underwent a third surgery to make further revisions to the first after she was diagnosed with pseudoarthrosis caused by a failure of her bones to fuse. After becoming bedridden by back pain in August of 2002, Plaintiff underwent a fourth spinal surgery, this time on her back. Almost two months after the fourth surgery, plaintiff reported some aching but otherwise was doing well until December when increased pain was attributed to "overdoing things." Plaintiff's final spinal surgery, again on the neck, occurred on April 29, 2003 and was intended to again correct the first surgery due to pseudoarthrosis. Plaintiff also made complaints regarding carpel tunnel syndrome and incontinence, though with no supporting evidence. While she did have some problems with carpel tunnel syndrome in 1997, her Doctor, Eugene O'Brien, M.D., released her to full work on May 6, 1998 and declared that her condition was not permanent on August 14, 1998.
II. Procedural History
Plaintiff filed an application for disability benefits on October 29, 2001. Her application was denied on December 7, 2001 and again, after review, on April 2, 2002. Administrative Law Judge (ALJ) Karen McCoy issued a third denial on September 26, 2003 after a hearing on May 19, 2003. Plaintiff appealed to the Appeals Council on October 27, 2003, however her request for review was denied on March 18, 2004. The instant action was filed on November 4, 2004. On February 14, 2005, United States Magistrate Judge John Primomo filed a Report and Recommendation that the judgment of the ALJ be affirmed.
III. Analysis
Plaintiff has objected to the Report and Recommendation. The Court reviews de novo those portions of the Report and Recommendation to which objection is made. See 28 U.S.C. § 636(b)(1). Such a review means that the Court will examine the entire record and will make an independent assessment of the law. However, in examining the Commissioner's decision denying disability insurance benefits, the Court is limited to a determination of whether substantial evidence supports the decision and whether the Commissioner applied the proper legal standards in evaluating the evidence. Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995). "Substantial evidence is more then a scintilla, less then a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). When substantial evidence supports the Commissioner's findings, they are conclusive and must be affirmed. Martinez, 64 F.3d at 173. Four elements are weighed by the Court in determining whether the Commissioner's decision is based on substantial evidence: (1) objective medical facts; (2) diagnoses and opinions of treating and examining physicians; (3) the claimant's subjective evidence of pain and disability; and (4) the claimant's age, education, and work experience. Id. at 174. While a de novo review may result in the Court reaching a different ultimate conclusion, conflicts in the evidence are to be resolved by the Commissioner. Id.
The Social Security Administration has set out a five-step process to evaluate disability claims. 20 C.F.R. §§ 404.1520, 416.920. The first step is to determine whether the claimant is currently employed in substantial gainful activity. If so, the claimant is not disabled. Next it must be determined whether the claimant's impairment is severe. Only a severe impairment allows for continuation on to step three. At step three, the severe impairment is compared with a list of specific impairments. If the claimant's impairment meets or medically equals one of the listed impairments, the plaintiff is disabled. Otherwise, the analysis must continue on to step four. At step four, the Commissioner determines whether, in light of the claimant's residual functional capacity, the impairment precludes a claimant from returning to her past relevant work. Crowley v. Apfel, 197 F.3d 194, 197-98 (5th Cir. 1999). If it is determined that the claimant cannot return to her past relevant work, the burden of proof shifts to the Commissioner to show that the impairment does not prevent the claimant from performing other jobs that exist in significant numbers in the national economy, considering residual capacities, age, education and work experience. Id. If the Commissioner carries this burden, the burden shifts back to the claimant to prove that she is unable to perform the alternative work. Id.
The Court has reviewed the record in this case and finds that the Commissioner's determination is supported by substantial evidence, despite the plaintiff's objection that the ALJ failed to properly consider the medical evidence of non-unions and its resulting implications for competitive work.
After a spinal fusion surgery, the failure of the bones to fuse is termed a non-union.
The plaintiff first contends that the evidence of failed unions after numerous spinal surgeries supports an inability to work in the competitive workforce at step five of the evaluation process. However to reach step five the plaintiff must first prove steps one and two and either steps three or four. 20 C.F.R. §§ 404.1520, 416.920. The parties agree that the plaintiff carried her burden on steps one and two. The parties also agree that step three was not proved. However, the plaintiff has offered no evidence that, in light of her residual functional capacity, she is incapable of returning to her past relevant work under step four. See James v. Bowen, 793 F.3d 702, 704 (5th Cir. 1986). Because the plaintiff has not met her burden under step four, the Court need not reach the issue of the proper step five analysis.
In any event, even were the Court to perform a step five analysis, it is unlikely given plaintiff's age and past work experience as both a customer service representative and a bookkeeper, she would not be able to perform jobs available in significant numbers in the economy despite her impairment.
In determining the plaintiff's ability to return to her previous employment as a customer service representative, the ALJ considered her complaints of pain, the opinion of her treating doctor, the testimony of Dr. Randall King with regard to the medical evidence in the record and the testimony of vocational expert Judith Harper with regard to plaintiff's age, education, and previous work experience. While great weight is generally given to the opinions of treating doctors, it is within the ALJ's discretion to discount these opinions in light of other evidence. Leggett v. Chater, 67 F.3d 558, 566 (5th Cir. 1995). In the case at hand, the ALJ considered the opinion of the plaintiff's treating physician, Dr. Neidre, but in light of Dr. King's testimony, found it to be inconsistent with the record as a whole. The ALJ further considered the plaintiff's subjective testimony of pain and found it to be inconsistent with objective medical tests that showed normal results.
The plaintiff argues that there was further medical evidence of pseudoarthrosis that was consistent with her pain and with her doctor's opinion. Evidentiary conflicts are for the Commissioner, and not the courts, to resolve. Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002). Further, the plaintiff's fifth surgery, less then a month before her hearing, was intended to correct any further problems associated with the plaintiff's pseudoarthrosis. Plaintiff does not argue this surgery was unsuccessful.
IV. Conclusion
Plaintiff seeks review of the decision to deny her disability benefits and objects to the Report and Recommendation of the United States Magistrate Judge that the decision be affirmed. She alleges that the medical evidence of non-unions was not properly considered by the ALJ and that she could not perform work available in the national economy. The record indicates that all of the plaintiff's evidence was properly considered, and that she has not met her burden to establish that she could not return to work. Accordingly, the Court ACCEPTS the Magistrate Judge's Recommendation and AFFIRMS the Commissioner's denial of disability benefits. The Plaintiff's complaint is DISMISSED. The Clerk of the Court is directed to enter judgment in favor of the Commissioner.