Truitt v. Astrue

Filing 31

ORDER ADOPTING the 26 RECOMMENDATION of the Magistrate Judge; OVERRULING the 27 Objection; AFFIRMING the decision of the Commissioner; DISMISSING this case with prejudice, with costs awarded to the Defendant. A separate judgment will be entered. Signed by Honorable William Keith Watkins on 1/7/2010. (br, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION D E B R A M. TRUITT, P la in tif f , v. M IC H A E L J. ASTRUE, C o m m is s io n e r of Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

CASE NO. 1:08-CV-620-WKW

ORDER T h e Magistrate Judge entered a Recommendation (Doc. # 26) that Plaintiff Debra T ru itt's claim for Social Security benefits be denied and her case against Defendant C o m m is s i o n e r of Social Security ("Commissioner") be dismissed. Ms. Truitt filed an O b je c tio n (Doc. # 27) to the Recommendation, the Commissioner responded to the Objection (Doc. # 29.), and Ms. Truitt replied to the response. (Doc. # 30.) The case is now ripe for re s o lu tio n . This court has conducted an independent and de novo review of those portions o f the Recommendation to which objections have been made. 28 U.S.C. § 636(b)(1). Ms. T ru itt presents five objections to the Recommendation. Ms. Truitt's first objection is that the Administrative Law Judge ("ALJ") who heard h e r case did not properly qualify the vocational expert who testified for the Commissioner a t the administrative hearing. According to the Objection, a case cited by the Magistrate J u d g e is inapposite because it did not deal with the issue of qualifying expert witnesses. Ms. T ru itt misapprehends the proposition for which the case, Diorio v. Heckler, 721 F.2d 726,

728 (11th Cir. 1983), was cited. The Recommendation cites Diorio not to reject this claim o n the merits, but to establish that the doctrine of harmless error applies to Social Security c a s e s such as this one. In Diorio, the Eleventh Circuit found that an ALJ had made an error o f fact and an error in the way he had classified the claimant's job skills, but that "[t]hese [ w e re ] harmless errors." Id. Likewise, the Magistrate Judge's point here is that even if the A L J was in technical violation of a regulation by not qualifying the vocational expert through o ra l questioning, the error was harmless because the expert's credentials were admitted into e v id e n c e before the hearing began. (Doc. # 26 at 4.) Ms. Truitt does not dispute this c o n c lu s io n or argue that the doctrine of harmless error is inapplicable. There is no error in th e Magistrate Judge's finding that there is no entitlement to relief on this basis. S e c o n d , Ms. Truitt asserts that the Recommendation failed to consider the impact of h e r mental state, specifically her alleged depression, on her ability to find a job. Ms. Truitt a rg u e s that the ALJ improperly ignored evidence the depression she suffered, and testimony f ro m a psychologist that "depression secondary to her physical limitations . . . could be c o n s id e re d debilitating." (Doc. # 27 at 4.) As the Recommendation observed, however, the p s yc h o lo g i s t testified based on a simple reading of Ms. Truitt's file, and offered what e s s e n tia lly was informed speculation about the possible effects of Ms. Truitt's physical a ilm e n ts on her mental state. (Doc. # 26 at 6-7 & n.6.) The Recommendation found that M s . Truitt never saw a mental health professional in connection with her alleged depressive s ym p to m s , and that her file contained no evidence that she actually had any mental problems

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secondary to her physical disorders. (Doc. # 26 at 7.) The Objection does not take issue with t h e s e findings, but only reasserts that Ms. Truitt suffered severe and painful physical c o n d itio n s . That much is not disputed, but it was not error for the ALJ to require more before c o n c lu d in g that Ms. Truitt also suffered from mental conditions sufficient to undermine her a b ility to work. The case law cited by the Recommendation supports this conclusion. (Doc. # 26 at 8.) T h ird , Ms. Truitt argues that the Recommendation errs in failing to give controlling w e ig h t to the opinions of her treating physicians. As the Magistrate Judge found, this claim f a ils as a factual matter, because Ms. Truitt simply does not adduce any evidence that a tre a tin g physician has ever stated that she is unable to perform at least sedentary work. (Doc. # 26 at 17-18.) Indeed, the opinion of her primary treating physician, Dr. Patel, largely c o n v e rg e s with the opinion of the non-treating physician who testified at the hearing, Dr. B re n d e m u e h l. Both concluded that Ms. Truitt's abdominal pain limited the range of physical a c tiv itie s she should undertake and meant that she should perform only light work. The use o f various adjectives, such as "debilitating," without further elaboration, does not answer the re le v a n t question of what work Ms. Truitt can actually perform. The ALJ's finding that she is capable of performing sedentary work was supported by substantial evidence. F o u rth , Ms. Truitt argues that the ALJ did not fully credit her testimony about the e x te n t of her limitations. Contrary to her initial argument, it is clear that the Magistrate Judge d i d consider this issue in section V.C. of the Recommendation, entitled "Pain." On the

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merits, the Recommendation notes that the ALJ had found that Ms. Truitt's assertion that she s u f f e re d from disabling pain was not credible. While the ALJ found that the medical e v id e n c e as a whole supported a finding that Ms. Truitt suffered from some amount of pain a s the result of her physical problems, she found that her statement at the hearing that even s e d e n ta ry work was disablingly painful not to be credible. (Doc. # 26 at 9-11.) The content o f this objection is cursory and lacking in argument. The item concerning a "medication list" (D o c . # 27 at 8) appears to misread the Recommendation, which does not state that no m e d ic a tio n list was given by a particular doctor, but rather that the medication prescribed by th a t doctor was not considered by the ALJ because no treatment notes from that doctor had b e e n offered into evidence. (Doc. # 26 at 11.) This section of the Objection also claims that a typo in the medication list identified a medical doctor as a dentist. The ALJ's opinion did decline to consider a medication p re s c rib e d by this doctor because there was no explanation of how any dental work related to the claimed disability. (Doc. # 23 at 18-19.) But even now, Ms. Truitt does not offer an e x p la n a tio n of the actual purpose of the medication or her relationship with Dr. O'Brien. There is no showing that correcting the error would be relevant to the ALJ's conclusions, m u c h less have compelled her to reach the opposite result. There is no error in the R e c o m m e n d a tio n 's conclusion that the ALJ's findings were supported by substantial e v id e n c e . F if th and finally, Ms Truitt argues that the Appeals Council did not properly consider

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the records of treatment subsequent to her hearing before the ALJ. This objection is not a c c o m p a n ie d by any explanation of what the supposed new evidence consisted of, or how it would have changed the outcome of this case. The Appeals Council stated that it c o n s id e re d as new evidence letters from Ms. Truitt's attorney and "[t]reatment records for th e period ending March 23, 2007." (Doc. # 23 at 8.) In none of her filings in this court has M s . Truitt elaborated on what these new treatment records consisted of, much less explained h o w they should have caused the Appeals Council to reach a different conclusion. No a u th o rity required the Appeals Council to undertake a detailed discussion of the new records. Accordingly, this objection lacks a factual basis, or, put another way, any possible error was h a rm le s s because Ms. Truitt has not shown how it had any impact on the outcome of her case. A c c o rd in g ly, it is ORDERED that: (1 ) The Recommendation (Doc. # 26) is ADOPTED; (2 ) The Objection (Doc. # 27) is OVERRULED; (3 ) The decision of the Commissioner is AFFIRMED, and; (3 ) This case is DISMISSED with prejudice, with costs awarded to the Defendant. A separate judgment will be entered. D O N E this 7th day of January, 2010. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

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