Mears v. Social Security Administration

Filing 14

ORDER granting 12 Report and Recommendations. The request for relief is denied and the Commissioner's decision is affirmed. Signed by Judge Kristine G. Baker on 09/30/2014. (plm)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
FREDERICK WAYNE MEARS
v.

PLAINTIFF

Case No. 4:13-cv-00556-KGB–BD

CAROLYN W. COLVIN, Acting Commissioner,
Social Security Administration

DEFENDANT

ORDER
The Court has received the Recommended Disposition (“Recommendation”) filed by
Magistrate Judge Beth Deere (Dkt. No. 12). After careful review of the Recommendation,
plaintiff Frederick Wayne Mears’s timely objections (Dkt. No. 13), as well as a de novo review
of the record, the Court concludes that the Recommendation should be, and hereby is, approved
and adopted as this Court’s findings in all respects. Mr. Mears’s request for relief is denied and
the Commissioner’s decision is affirmed.
The Court writes separately to address Mr. Mears’s objections. First, Mr. Mears objects
to the Recommendation’s reliance on medical records showing that surgery was not necessary.
He cites Brosnahan v. Barnhart, 336 F.3d 671 (8th Cir. 2003), for the proposition that the
necessity of surgery is not an accurate measure for the existence or severity of pain. However,
Brosnahan is not controlling under the circumstances here. In Brosnahan, the Eighth Circuit
stated that “[t]he lack of any need for surgery is also not a reason to discredit [plaintiff]: the
[American College of Rheumatology] does not recommend surgery for fibromyalgia.” Id. at
677. Conversely, surgery may be recommended for back pain, and Mr. Mears cites no authority
stating that the necessity of surgery may not be considered in determining the existence or
severity of pain where surgery is a potential remedy to be prescribed.

Moreover, the

Recommendation did not discredit Mr. Mears’s allegations based on medical records showing

that surgery was not necessary; it merely considered the medical records, along with other
evidence, in finding that substantial evidence supported the ALJ’s determination. See Bowman
v. Barnhart, 310 F.3d 1080, 1084 (8th Cir. 2002) (“The ALJ also erred in discounting
[plaintiff’s] allegations of disabling pain because she had been treated medically, not surgically,
for her impairments.”).
Second, Mr. Mears objects to the Recommendation’s finding that there was no reason for
a psychological consultative evaluation. Mr. Mears cites to Cox v. Apfel, which stated that
“[d]epression, diagnosed by a medical professional, is objective medical evidence of pain to the
same extent as an X-ray film.”

160 F.3d 1203, 1207 (8th Cir. 1998).

Even so, the

Recommendation found that the evidence that Mr. Mears’s primary care physician (“PCP”) had
prescribed an anti-depressant from time to time implicated no significant mental impairment
such that a consultative mental evaluation was necessary, and this Court agrees.
Third, Mr. Mears objects to the Recommendation’s finding that the ALJ was not required
to re-contact the PCP and that opinion evidence supported the ALJ’s determination. Mr. Mears
argues that the specialists do not support or fail to support the PCP’s opinion that Mr. Mears
could not perform sedentary work, only that Mr. Mears did not need surgery, and that the ALJ
and Magistrate Judge substituted their lay opinion, based on diagnostic and clinical testing, for
that of the PCP. However, the Recommendation points to other evidence supporting the ALJ’s
weighing of the PCP’s opinion, such as its timing and inconsistency with other record evidence.
For example, the PCP reported that Mr. Mears’s back condition was not likely to improve due to
nerve impingement, despite diagnostic imaging showing no significant nerve impingement.
Further, the ALJ and Magistrate Judge did not merely rely on diagnostic and clinical testing to
make speculative inferences regarding Mr. Mears’s ability to perform sedentary work, as reports

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from specialists that had actually performed physical examinations of Mr. Mears supported the
ALJ’s determination.
IT IS SO ORDERED this 30th day of September, 2014.

________________________________
KRISTINE G. BAKER
UNITED STATES DISTRICT JUDGE

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