Dougherty v. Social Security Administration Commissioner
JUDGMENT AFFIRMING THE DECISION OF THE COMMISSIONER and Plaintiffs case is dismissed with prejudice and adopting the Recommendation of the Magistrate Judge as set forth in the 7 Report and Recommendations. Signed by Honorable P. K. Holmes, III on July 16, 2012. (rw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
Case No. 3:11-CV-03032
MICHAEL J. ASTRUE, Commissioner
Social Security Administration
Currently before the Court is the Report and Recommendation (Doc. 7) filed on May 3, 2012,
by the Honorable James R. Marschewski, Chief United States Magistrate Judge for the Western
District of Arkansas. Also before the Court are Plaintiff’s objections (Doc. 9).
The Court, having reviewed this case de novo, finds that Plaintiff’s objections offer neither
law nor fact requiring departure from the Report and Recommendation.
Plaintiff’s first objection is that the Magistrate did not properly weigh the report of one of
Plaintiff’s physicians, Dr. Vann Smith. After reviewing the evidence, the Court finds that the
Magistrate carefully evaluated the ALJ’s failure to give Dr. Smith’s opinion controlling weight and
observed that Dr. Smith’s opinions were not due the same deference as those of medical experts who
took into account Plaintiff’s past medical records without relying solely, as Dr. Smith did, on
Plaintiff’s subjective medical complaints.1 The Magistrate cited to Kirby v. Astrue, 500 F.3d 705,
Plaintiff also draws the Court’s attention to a footnote in the Magistrate’s opinion, which
states that, in general, “Dr. Smith’s diagnoses are rarely supported by the overall medical evidence of
record and are, quite often, the only evidence of a neuropsychological impairment contained in the
record.” (Doc. 7, p. 21). Plaintiff alleges that this footnote demonstrates that Dr. Vann’s opinions
were “ignored [by the Magistrate] merely because Dr. Smith has made the same or similar findings
in other cases.” (Doc. 9, p. 2). On the contrary, as discussed above, the Magistrate both
substantively addressed Dr. Smith’s findings as to Plaintiff’s particular medical ailments and
analyzed how Dr. Smith’s medical opinion was considered by the ALJ.
709 (8th Cir. 2007), for the proposition that the opinion of a consulting physician is not entitled to
special deference, especially when it is based largely on a claimant’s subjective complaints. The
Magistrate also found, after a review of the administrative record, that Dr. Smith’s medical
assessment was directly contradicted by two other doctors, both of whom had reviewed Plaintiff’s
medical records. Finally, the Magistrate concurred with the ALJ that the fact that Plaintiff continued
to work part-time at McDonald’s undermined Dr. Smith’s conclusion that Plaintiff was too disabled
to work. For all of these reasons, the Court finds that the Magistrate’s opinion regarding Dr. Vann’s
medical determinations is well reasoned and properly supported.
Plaintiff’s second objection is that the Administrative Law Judge (“ALJ”) did not make a
credibility finding that conformed with the relevant standards of law. Although Plaintiff concedes
that “[t]he Magistrate’s Report engages in a thorough discussion defending the ALJ’s finding that
the claimant was not credible...” (Doc. 9, p. 3), Plaintiff contends that the Magistrate failed to
consider whether the ALJ properly applied the five-factor credibility test set forth in Polaski v.
Heckler, 739 F.2d 1320 (8th Cir. 1984). Again, the Court finds Plaintiff’s objection to be without
merit, as the Magistrate’s discussion specifically referenced Polaski’s five-factor test and properly
analyzed whether the ALJ’s findings with regard to Plaintiff’s credibility were supported by substantial
evidence. See Doc. 7, pp. 9-10.
Accordingly, the Court finds that the Report and Recommendation is proper and should be
and hereby is ADOPTED IN ITS ENTIRETY. The decision of the Administrative Law Judge is
AFFIRMED, and Plaintiff’s Complaint is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED this 16th day of July, 2012.
s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE
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