Young v. Commissioner of Social Security

Filing 21

ORDER that the 19 REPORT AND RECOMMENDATION re 1 Complaint filed by Charlene Young be adopted and incorporated by reference; and the Court enters judgment for the Defendant. The Clerk of Court is directed to enter judgment for the defendant, denying benefits, to close the case, and to terminate any pending motions. Signed by Judge Elizabeth A. Kovachevich on 9/29/2010. (SN)

Young v. Commissioner of Social Security

Doc. 21

UNITED S T A T E S D I S T R I C T C O U R T
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

CHARLENE YOUNG, Plaintiff,

v.
M I C H A E L J. A S T R U E ,
Commissioner of the United States

Case No. 8:09-cv-1056-T-17TBM

Social Security Administration,
Defendant. /

ORDER ADOPTING REPORT AND RECOMMENDATION

This cause comes before the Court following a review by U.S. Magistrate Judge Thomas McCoun whic recommends affirming the Commissioner o f the United States Social Security

Administration's decision, denying Plaintiff-Appellant Social Security disability benefits.1
Because the decision o f the Magistrate is in accordance with the correct legal standards, and is otherwise supported by substantial evidence, this Court affirms.
I. STANDARD OF REVIEW

Upon a timely and specific objection to a finding o f fact in the r e p o r t and
r e c o m m e n d a t i o n , the district c o u r t should review both factual and legal f i n d i n g s in the report
and r e c o m m e n d a t i o n de novo. 28 U . S . C . § 6 3 6 ( b ) ( l ) ; U.S. v. Raddatz. 4 4 7 U.S. 6 6 7 , 673 ( 1 9 8 0 ) ;

Gropp v. United Airlines, Inc., 817 F. S u p p . 1558, 1562 ( M . D . Phi. 1993) ( p r o v i d i n g for c a s e s
w h e r e no t i m e l y a n d s p e c i f i c o b j e c t i o n s w e r e m a d e ) . A f t e r s u c h r e v i e w , t h e j u d g e m a y a c c e p t ,

1 Report and Recommendation (R&R) by Magistrate Judge Thomas B. McCoun III, filed on July
3 0 . 2 0 1 0 ( D o c . 19). C a s e n u m b e r : 8 : 0 9 - c v - 0 1 0 5 6 - E A K - T B M .

Dockets.Justia.com

reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. Id.
Additionally, the judge may receive further evidence or recommit the matter to the magistrate
j u d;gve w i t h i n s t r u c t i o n s . Id. 'r

Because Plaintiff-Appellant timely filed her written objection to the Magistrate's R&R, this Court shall conduct a review of the case and analyze both factual and legal findings by the
Magistrate de novo. Further, it is the role o f the district court to decide w h e t h e r the C o m m i s s i o n e r ' s factual

findings are supported by substantial evidence and whether correct legal standards were applied.
Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001); Dikeman v. Halter, 245 F.3d 1182, 1184
(10th Cir. 2 0 0 1 ) .

A district court reviews an administrative law j u d g e ' s (ALJ's) findings for substantial
evidence. United Stales v. Warren, 687 F.2d 347, 348 (1 l t h Cir. 1982); United States v. Roberts, 858 F.2d 698. 701 (1 l t h Cir. 1988). "Substantial evidence is 'such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.'" Falge v. Apfel, 150 F.3d
1320, 1322 (1 l t h Cir. 1998) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)); Miles v.
Chaler. 84 F.3d 1397. 1400 (1 l t h Cir. 1996). The reviewing c o u r t m u s t d e t e r m i n e w h e t h e r the

evidence in its totality, fairly considered, affords a basis for a conclusion by a reasonable person
that the findings u n d e r r e v i e w have substantial support. Lamb v. Bowen, 847 F . 2 d 698, 701 (1 l t h

Cir. 1988) (citing Tieniber v. Heckler, 720 F.2d 1251, 1253 (1 l t h C i r . 1983); Smallwood v.
S c h w e i k e r , 6 8 1 F . 2 d 1 3 4 9 , 1 3 5 1 (1 l t h C i r . 1 9 8 2 ) ; W a l d e n v. S c h w e i k e r , 6 7 2 F . 2 d 8 3 5 , 8 3 8

(1 l t h C i r . 1 9 8 2 ) ) . S u b s t a n t i a l e v i d e n c e is m o r e t h a n a s c i n t i l l a o f e v i d e n c e a n d m u s t d o m o r e

than create a suspicion o f the existence o f a fact in order to be established; it means such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion. Lewis v.
Callahan. 125 F.3d 1436 (1 l t h Cir. 1997); Richardson v. Perales, 4 0 2 U.S. 3 8 9 , 398 (1971).

Substantial evidence is less than preponderance. Rutherford v. Barnhart, 399 F.3d 546, 552 (3d
Cir. 2005) (citing Ginsburg v. Richardson, 436 F.2d 1146. 1148 (3d C i r . 1971)); Laws v.
Ce/ebrezze. 368 F.2d 640. 642 (4th Cir. 1966); Boyd v. Apfel, 239 F.3d 698 (5th Cir. 2001);

Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001); Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001). Substantial evidence is considered a legal conclusion rather than a finding of
fact. Roberts, 858 F.2d at 701. No d e f e r e n c e to the C o m m i s s i o n e r ' s or M a g i s t r a t e J u d g e ' s legal

conclusions is given on this review. Keeton v. Dep't o f Health & Human Servs., 21 F.3d 1064, 1066 (11 tli Cir. 1994). However, findings that are made by the Commissioner as to any fact are
to be found c o n c l u s i v e by the C o u r t if s u p p o r t e d by s u b s t a n t i a l e v i d e n c e . 42 U . S . C . A. §405(g).

11

BACKGROUND

Plaintiff-Appellant was involved in a rear-ended motor vehicle accident, as a result o f which she sustained injuries to her neck and back. (R. 27; R. 1012). Plaintiff-Appellant's

disability started following the accident, on July 19, 1995.2 (R. 26). During her testimony, she
indicated she had pain in her neck, low b a c k area, left leg, and left s h o u l d e r . (R. 26). F u r t h e r , she stated that she e x p e r i e n c e d d i z z i n e s s , and her left knee on o c c a s i o n g a v e out. (R. 27). The p a i n in her neck was s h a r p at one point but is more o f a nagging pain now. (R. 27). A c c o r d i n g to her testimony, the b a c k pain is w o r s e w h e n she sits. (R. 27). P l a i n t i f f - A p p e l l a n t d e s c r i b e d h a v i n g
m e m o r y a n d c o n c e n t r a t i o n p r o b l e m s . (R. 27). S h e a l s o s t a t e d t h a t s h e c o u l d s t a n d or w a l k for

2 At that stage, Plaintiff-Appellant was forty-four years old. (R. 34). As additional information,
P l a i n t i f f - A p p e l l a n t has a n i n t h g r a d e e d u c a t i o n . (R. 1047).

about ten minutes before her low back area and left leg began to hurt. (R. 27). She alleged not

being able to sit for more than five minutes comfortably before her leg would become numb and
tingle. (R. 27).

Two years after the motor vehicle accident, Plaintiff-Appellant underwent surgery on her neck. (R. 1014). The surgery was not a success, and Plaintiff-Appellant continued to have pain
a f t e r the s u r g e r y . (R. 1015).

The record reflects that Dr. Laurie Barclay, a neurologist who completed interrogatories submitted to her in connection with the disability hearing held in O c t o b e r 1999, opined, based on

the review o f Plaintiff-Appellant's entire medical history up to February 20, 2001, that PlaintiffAppellant did not have any physical restrictions. (R. 31). The record shows Plaintiff-Appellant
was seen by Dr. Gilson Webb, a psychiatrist, who completed Plaintiff-Appellant's psychiatric and psychosocial evaluation. (R. 31). Despite diagnosing Plaintiff-Appellant with an adjustment disorder with depressed mood, Dr. Webb noted Plaintiff-Appellant had good ability in making
performance a d j u s t m e n t s and in personal-social adjustment. (R. 32).
Ill PROCEDURAL HISTORY

P l a i n t i f f - A p p e l l a n t a p p l i e d for d i s a b i l i t y b e n e f i t s on M a r c h 2 8 . 1 9 9 6 . (R. 2 4 ) . S h e m a i n t a i n e d her d i s a b i l i t y s t a r t e d on J u l y 19, 1995. (R. 24). P l a i n t i f f - A p p e l l a n t ' s c l a i m for

disability benefits was originally d e n i e d on A u g u s t 22, 1997 (R. 24). P l a i n t i f f - A p p e l l a n t appealed that decision. (R. 24). From March 28, 1996 up to present, four a d m i n i s t r a t i v e h e a r i n g s w e r e
conducted. (R. 24).

The fourth and final a d m i n i s t r a t i v e hearing is pertinent to this a p p e a l . T h i s h e a r i n g was held on July 17. 2 0 0 6 . before A d m i n i s t r a t i v e Law J u d g e Ayer. (R. 1010). At that h e a r i n g ,

Plaintiff-Appellant was represented by counsel. (R. 1010). A vocational and a medical expert

were present at the hearing. (R. 1010). The ALJ asked the medical expert (ME), Dr. Owen

Linder. specific questions pertaining to the period from July 19, 1995 up to June 30, 1999.3 (R.
1012). Dr. Linder indicated that Plaintiff-Appellant had a cervical strain that gave radicular

symptoms in her arms; she also had low back symptoms. (R. 1013). Based on his review of the
record, the medical expert opined, however, that during the period in question, PlaintiffAppellant could perform sedentary work. (R. 1019). When asked why his opinion regarding
Plaintiff-Appellant's ability to return to work varied from that rendered previously by Dr. Shahnasarian, Dr. Linder replied that his was based solely on objective organic factors, meaning that it was based on there being no muscle atrophy and no neurological deficit o f any significance. (R. 1021). Dr. Shahnasarian's opinion, on the other hand, was based not j u s t on purely objective organic factors but on Plaintiff-Appellant's unquantifiable and immeasurable perception o f pain. (R. 1021). Dr. Linder further testified that, based on his review o f the record,
Plaintiff-Appellant could work an eight-hour day with six hours sitting, one hour walking and
one hour standing. (R. 1032, 1033, 1035).

The vocational expert (VE), Dr. Steven Simon, testified next. (R. 1047). Me opined that
Plaintiff-Appellant, given h e r limitations, could perform s u c h j o b s as an i n f o r m a t i o n c l e r k ( f o r
w h i c h t h e r e are 2 . 0 0 0 j o b s l o c a l l y in the T a m p a Bay a r e a , 1 3 , 0 0 0 j o b s s t a t e w i d e , a n d 2 0 0 , 0 0 0

j o b s nationally), an a p p o i n t m e n t c l e r k (1,700 j o b s locally, 10,000 j o b s s t a t e w i d e , and 179,000

j o b s nationally), an order clerk (450 j o b s locally, 2,700 j o b s statewide, and 50,000 j o b s
nationally), and a cashier checker or auction clerk (collectively 3,000 jobs locally, 19,000 jobs

s t a t e w i d e a n d 2 9 7 , 0 0 0 j o b s n a t i o n a l l y ) . (R. 35, 1 0 4 9 - 1 0 5 0 ) .

3This is the period at issue based on the fact that Plaintiff-Appellant's disability insured status
expired on J u n e 30. 1999, in a c c o r d a n c e with 20 C.F.R. § 4 0 4 . 1 5 2 0 ( a ) .

Subsequently, the ALJ denied Plaintilf-Appellant's claim. (R. 25). Because this time, unlike the three previous occasions, the Appeals Council denied Plaintiff-Appellant's request for
review, the ALJ's d e c i s i o n b e c a m e the final decision o f the C o m m i s s i o n e r , t h e r e b y fulfilling a

prerequisite that must be met before a District Court has subject matter jurisdiction to review a claim:' (R, 13).
Plaintiff-Appellant timely appealed the Commissioner's decision, which was reviewed by Magistrate Judge Thomas McCoun. who denied Plaintiff-Appellant social security disability benefits.- Plaintiff-Appellant timely sought review o f the Magistrate's R&R with this Court.

IV.

DISCUSSION

Plaintiff-Appellant contends in her written objections6 that (1) the ALJ erred when he did
not comply with the Order o f the Appeals Council by failing to evaluate the hearing testimony o f
Plaintiff-Appellant's h u s b a n d , failing to assess the husband's credibility, and r e f u s i n g to o b t a i n the testimony o f a medical e x p e r t to clarify the mental limitations d u r i n g the p e r i o d at issue prior
to e x p i r a t i o n o f h e r d i s a b i l i t y i n s u r e d s t a t u s on J u n e 30, 1 9 9 9 ; (2) the A L J failed to m a k e a p r o p e r c r e d i b i l i t y f i n d i n g o f P l a i n t i f f - A p p e l l a n t ' s t e s t i m o n y , a n d e r r e d in i m p r o p e r l y d i s c r e d i t i n g

Plaintiff-Appellant's c o m p l a i n t s o f pain and subjective s y m p t o m s ; (3) the ALJ e r r e d in d e t e r m i n i n g that P l a i n t i f f - A p p e l l a n t was capable o f m a k i n g a s u c c e s s f u l a d j u s t m e n t to o t h e r
work t h a t e x i s t e d in s i g n i f i c a n t n u m b e r s in the n a t i o n a l e c o n o m y ; a n d (4) the A L J e r r e d in

4 Weinberger v. Salfi. 422 U.S. 749, 765 (1975).

5 Report and Recommendation (R&R) by Magistrate Judge Thomas B. McCoun III, filed on July
3 0 . 2 0 1 0 ( D o c . 19). C a s e n u m b e r : 8 : 0 9 - c v - 0 1 0 5 6 - E A K - T B M .

6 Plaintiff Charlene Young's Written Objections to Proposed Findings in Report and
R e c o m m e n d a t i o n o f M a g i s t r a t e , ( D o c . 20 at 2 - 5 ) , filed w i t h the M i d d l e D i s t r i c t o f F l o r i d a . T a m p a D i v i s i o n , on A u g u s t 10. 2 0 1 0 .

finding that Plaintiff-Appellant's depression did not cause a significant limitation in PlaintiffAppellant's ability to perform basic work activities. This Court will address Plaintiff-Appellant's objections in turn.

First, Plaintiff-Appellant maintains that the ALJ erred when he did not comply with the Order of the Appeals Council by failing to evaluate the hearing testimony of Plaintiff-Appellant's
husband and by failing to assess the husband's credibility.

During the fourth and final July 17, 2006, hearing, the ALJ indicated that the husband had
testified at a previous hearing, and therefore the record already contained his testimony. (R. 1011). Further, since the primary concern of the Appeals Council was the medical expert
testimony, it was the medical expert's testimony, aimed at clarifying Plaintiff-Appellant's

physical and mental limitations and maximum residual functional capacities, that constituted the

main focus of the hearing.7 Dr. Linder was available to Plaintiff-Appellant's counsel for
questioning, but counsel never questioned Dr. Linder about Plaintiff-Appellant's mental
l i m i t a t i o n s . (R. 1 0 1 0 - 1 0 4 7 ) .

As for the fact that Plaintiff-Appellant's husband did not testify at the fourth and final
hearing, counsel for P l a i n t i f f - A p p e l l a n t did not object to this upon c o m p l e t i o n o f the medical expert testimony. (R. 101 1. 1 0 5 9 - 1 0 6 0 ) . Furthermore, w h e n P l a i n t i f f - A p p e l l a n t ' s c o u n s e l specifically a s k e d the vocational e x p e r t i f he needed to h e a r the h u s b a n d ' s t e s t i m o n y in o r d e r to
r e n d e r his o p i n i o n , the VE r e p l i e d t h a t he d i d not. (R. 1 0 5 6 - 1 0 5 7 ) .

7 Order o f Appeals Council by Administrative Appeals Judge Thomasine B. Carter in the Case o f
C h a r l e n e Y o u n g , d a t e d J a n u a r y 5. 2 0 0 6 . (R. 7 2 6 - 7 2 8 ) .

Even assuming arguendo that the husband's testimony was necessary during this final

hearing, notwithstanding the fact that the record already contained his testimony from the third
hearing, the fact that the husband was not allowed to testify at this fourth and final hearing was,
at most, harmless error.

H a r m l e s s e r r o r s a r e t h o s e t h a t d o n o t a f f e c t t h e A L J ' s d e t e r m i n a t i o n t h a t a c l a i m a n t is n o t

e n t i t l e d to b e n e f i t s . Curry v. S u l l i v a n , 9 2 5 F . 2 d 1 1 2 7 . 1131 ( 9 t h C i r . 1 9 9 0 ) ; Stout v. Comm'r o f

Soc. Sec. Admin. 454 F.3d 1050. 1055 (9th Cir. 2006); see generally Miles v. Harris. 645 F.2d

122. 124 (2d Cir. 1981) (noting the ALJ's procedural error was harmless) and McKinght v. Astrue. 340 Fed. Appx. 176. 181 n. 1 (5th Cir. 2009) (noting the procedural error in the case did not prejudice claimant). The harmless error inquiry involves determining ''whether the ALJ
would have reached the same decision denying benefits, even if he had followed the proper
procedure." Gilmore v. Astrue, 2 0 1 0 WL 989635 at *24, (N.D. Fla. Feb. 18, 2 0 1 0 ) ( c i t i n g

Bmeggenmnn v. Barnhart, 348 F.3d 689. 695 (8th C i r . 2 0 0 3 ) ) . Error is harmless unless there is
reason to think that remand m i g h t lead to a different result. Fisher v. Bowen. 869 F.2d 1055. 1057 (7th Cir. 1989). The policy behind harmless error; is to p r e s e r v e j u d g m e n t and a v o i d waste
o f time. M a y s v. B o w e n , 8 3 7 F . 2 d 1362 (5th Cir. 1988) ( c i t i n g G u l f S t a t e s Utilities Co. v. E c o d v n e Corp., 635 F . 2 d 5 1 7 . 5 2 0 ( 5 t h Cir. Jan. 1981)).

The undersigned believes that failure to call Plaintiff-Appellant's husband to testify yet
again was at m o s t h a r m l e s s e r r o r because the husband's t e s t i m o n y w o u l d not have d e c r e a s e d the magnitude o f o t h e r s u b s t a n t i a l e v i d e n c e in the record c o n t r a d i c t i n g the h u s b a n d ' s testimony.

As for the need to have a special psychiatric expert evaluate Plaintiff-Appellant, there

was simply no explicit directive by the Appeals Council directing the ALJ to call a special

psychiatric expert to the stand.8 The ALJ followed the Appeals Council directive fully and did
not commit error.

Second. Plaintiff-Appellant maintains the ALJ erred in failing to make a proper

credibility finding o f the Plaintiff-Appellant's testimony, and erred in improperly discrediting
Plaintiff-Appellant's c o m p l a i n t s o f pain and subjective s y m p t o m s .

As for the ALJ's finding regarding o f the credibility o f Plaintiff-Appellant's testimony,
this finding will not be disturbed. It is the function o f the Commissioner, and not o f this Court, to

assess the credibility of the witnesses. Grant v. Richardson, 445 F.2d 656, 656 (5th Cir. 1971)9.
As for subjective symptoms o f pain, these are governed by a three-part "pain standard":
(1) there m u s t be e v i d e n c e o f an underlying medical c o n d i t i o n and e i t h e r ; (2) o b j e c t i v e medical

evidence that confirms the severity o f the alleged pain arising from that condition, or (3) that the objectively determined medical condition is o f such severity that it can be reasonably expected to
give rise to the alleged pain. Holt v. Sullivan. 921 F.2d 1221. 1223 (1 l t h Cir. 1991) ( c i t i n g Landry v. Heckler, 782 F.2d 1551, 1553 ( 1 1 t h C i r . 1986)). An ALJ m u s t c l e a r l y a r t i c u l a t e explicit and a d e q u a t e reasons for not c r e d i t i n g subjective testimony. H a l e v. B o w e n , 831 F . 2 d 1007, 1011 ( 1 1 t h C i r . 1987). A reviewing c o u r t will not disturb a c l e a r l y a r t i c u l a t e d c r e d i b i l i t y finding based on substantial s u p p o r t i n g e v i d e n c e in the record. Id. at 1012.

8 The exact wording of the directive is to "obtain medical expert testimony to clarify the
claimant's physical and mental limitations and m a x i m u m residual c a p a c i t i e s d u r i n g the period at
i s s u e . " (R. 7 2 8 ) .

9 Decisions of the federal Fifth Circuit rendered prior to 1981 are binding on the Eleventh
Circuit.

In this case, the ALJ acknowledged Plaintiff-Appellant had pain as a result o f her cervical disc disease with spondylosis and lumbosacral strain, but the ALJ disagreed, based on his evaluation and weighing o f the objective medical evidence, that the pain rendered PlaintiffAppellant disabled. (R. 3 2 - 3 3 ) . Furthermore, the ALJ clearly articulated his credibility finding as
reflected in the record. (R. 33). B e c a u s e the ALJ's credibility finding r e g a r d i n g Plaintiff-

Appellant's subjective pain is substantially supported by evidence and is clearly articulated, this
C o u r t w i l l n o t d i s t u r b it.

Third, Plaintiff-Appellant contends the ALJ erred in determining that Plaintiff-Appellant
was capable o f m a k i n g a s u c c e s s f u l a d j u s t m e n t to o t h e r work that e x i s t e d in s i g n i f i c a n t n u m b e r s in the national economy. When m a k i n g this determination, the ALJ c o n s i d e r e d P l a i n t i f f Appellant's residual functional capacity, age, education, and w o r k e x p e r i e n c e in c o n j u n c t i o n with 20 C.F.R. § 4 0 4 ( P ) M e d i c a l - V o c a t i o n a l Guidelines. (R. 35). T h e s e g u i d e l i n e s are b a s e d on the level o f e x e r t i o n an individual can apply to a j o b . (R. 35). P l a i n t i f f - A p p e l l a n t c o u l d per f or m unskilled sedentary work w i t h s o m e limitations. (R. 35). She c o u l d sit for up to six hours, w a l k for an hour, and stand for a n o t h e r hour, making it possible for her to w o r k a full e i g h t - h o u r day. Based on these l i m i t a t i o n s , the ALJ asked the VE w h e t h e r j o b s e x i s t e d in the national e c o n o m y for an individual with P l a i n t i f f - A p p e l l a n t ' s age, education, w o r k e x p e r i e n c e , and residual

functional capacity. (R. 35). The VE testified that, given all these factors, Plaintiff-Appellant could perform such j o b s as an information clerk (for which there are 2,000 j o b s locally, 13,000 j o b s statewide, and 200,000 j o b s nationally), an appointment clerk (1.700 j o b s locally. 10,000 j o b s statewide, and 179,000 j o b s nationally), an order clerk (450 j o b s locally. 2.700 j o b s statewide, and 50,000 j o b s nationally), and a cashier checker or auction clerk (collectively 3.000 jobs locally, 19.000 j o b s statewide and 297.000 j o b s nationally). (R. 35. R. 1 0 4 9 - 1 0 5 0 ) .

Fourth and final, Plaintiff-Appellant contends the ALJ erred in finding that PlaintiffAppellant's depression did not cause a significant limitation in Plaintiff-Appellant's ability to
perform basic work activities during the period in question. Plaintiff-Appellant cites previous medical evidence in the form o f Dr. P r o c k o p ' s and Dr. Shahnasarian's statements to support her claim o f a severe mental impairment. Flowever, a review o f these statements does not support Plaintiff-Appellant's claim. Dr. Linder, the ME at the final hearing, opined as to the differences between his and Dr. Shahnasarian's conclusions and
stated that Dr. Linder's c o n c l u s i o n s , unlike Dr. Shahnasarian's. w e r e b a s e d s o l e l y on o b j e c t i v e

organic factors. (R. 1021). Thus. Dr. Linder's and Dr. Shahnasarian's opinions conflict. However, any conflict between medical evidence, as well as evaluating and weighing the medical evidence,
is left to the ALJ. Grant v. Richardson, 445 F.2d 656 (5th Cir. 1971) ( e m p h a s i z i n g that the

resolution o f any conflict in the evidence, including conflicting medical opinions, and the
d e t e r m i n a t i o n o f w i t n e s s credibility, are not for the reviewing a p p e l l a t e c o u r t , and s t a t i n g that "such functions are solely w i t h i n the province o f the Secretary"). Additionally, as the record reflects, Plaintiff-Appellant's c o u n s e l had a c h a n c e to clarify and further d e v e l o p the record by putting pertinent questions to Dr. L i n d e r at the fourth and final hearing. Counsel n e v e r q u e s t i o n e d Dr. L i n d e r about w h e t h e r his r e v i e w o f the record revealed that P l a i n t i f f - A p p e l l a n t might have had any mental limitations. (R. 1 0 1 1 - 1 0 4 7 ) . T h i s C o u r t will not d i s t u r b the ALJ's finding that P l a i n t i f f - A p p e l l a n t ' s d e p r e s s i o n did not

cause a significant limitation in Plaintiff-Appellant's ability to perform basic work activities
during the period in question.10

"hrough June 30. 1999, which is Plaintiff-Appellant's date last insured. Supra n. 3.

In light o f the foregoing and the record as a whole, this Court finds the ALJ's decision that Plaintiff-Appellant could make a successful adjustment to j o b s such as those specified above, and that such j o b s existed in significant numbers in the national economy, and therefore
that P l a i n t i f f - A p p e l l a n t was not entitled to disability benefits, is s u p p o r t e d by s u b s t a n t i a l
evidence.

V.

CONCLUSION

This Court has performed a thorough and independent review o f the record and o f the
Report and R e c o m m e n d a t i o n by United States Magistrate J u d g e T h o m a s B. M c C o u n III. B e c a u s e the C o m m i s s i o n e r ' s d e c i s i o n is in accordance with the c o r r e c t legal s t a n d a r d s and is s u p p o r t e d by substantial e v i d e n c e , the M a g i s t r a t e ' s Report and R e c o m m e n d a t i o n a f f i r m i n g it, w h i c h w a s
rendered and filed on J u l y 30, 2 0 1 0 ( D o c . 19) is a f f i r m e d . A c c o r d i n g l y , it is

O R D E R E D that the report and r ecom m endation ( D o c k e t No. 19) be a d o p t e d and i n c o r p o r a t e d by r e f e r e n c e ; and the C o u r t e n t e r s j u d g m e n t for the D e f e n d a n t . T h e C l e r k o f Court is directed to e n t e r j u d g m e n t for the defendant, denying benefits, to c l o s e the case, and to
t e r m i n a t e any p e n d i n g m o t i o n s .

DONE and ORDERED in Chambers, in Tampa, Florida, thi^^^clay of September,
2010.

*L

C o p i e s f u r n i s h e d to:
All Parties and Counsel of Record