Harper v. ASTRUE

Filing 25

ORDER ON REPORT AND RECOMMENDATION; ACCEPTING 23 Report and Recommendation. Signed by SENIOR JUDGE MAURICE M PAUL on 7/12/2011. The decision of the Commissioner, denying benefits, is affirmed. (kdm)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
SANDY HARPER,
Plaintiff,
v.

CASE NO. 1:09-cv-00132-MP-GRJ

MICHAEL ASTRUE,
Defendant.
_____________________________/
ORDER
This matter is before the Court on Doc. 23, Report and Recommendation of the
Magistrate Judge recommending that the decision of the Commissioner, denying benefits, be
affirmed. The plaintiff filed objections, Doc. 24, and the Court has made a de novo
determination of those portions of the Report and Recommendation to which objection was
made. 28 U.S.C. § 636(b)(1)(C).
Plaintiff argues that: (1) the ALJ erred in failing to articulate any reasons for discrediting
the opinion of Dr. Depaz; (2) the ALJ erred in failing to consider the effect of Plaintiff’s
migraine headaches on her ability to work; (3) the ALJ did not accurately cite the limitations set
forth in the Residual Functional Capacity dated December 2002 and upon which she relied to
find Plaintiff capable of sedentary work, including attributing the assessment to a doctor ; (4) the
ALJ misstated the vocational expert’s testimony to support her finding that Plaintiff could
perform a number of semi-skilled jobs existing in the national economy; (5) the ALJ applied the
wrong Medical- Vocational Guideline Rule for Plaintiff’s age group; and (6) the VE did not
accurately identify DOT job listings that were consistent with the hypothetical posed by the ALJ.

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First, the ALJ did, in fact, state her reasons for discounting Dr. Depaz’ opinion, noting
that Dr. Depaz’ functional assessments were “given mainly secondary to her [Plaintiff’s]
subjective complaints.” (R. 60). Also, the ALJ explained that she found more persuasive the
RFC assessments of the State Agency physicians, an assessment completed at the VA on
December 11, 2002, the assessment of Dr. Chodosh, and the findings of Dr. Feussner because
their opinions were consistent with the record as a whole, which primarily consisted of the
records from the VA. Finally, Dr. Depaz was not a treating physician, whose opinion would be
entitled to greater weight; he was a consultative physician.
Second, the Court agrees with the Magistrate Judge that substantial evidence existed in
the record to support the ALJ’s conclusion that plaintiff’s migraine headaches were treatable
with medication and thus were not disabling. Third, the Court agrees that despite the error in
attributing the 2002 assessment to a doctor rather than to a registered nurse, substantial evidence
supported the ALJ’s decision not to rely upon all of the assessment. In light of the medical
record as a whole, those portions of the assessment not adopted by the ALJ were inconsistent
with the objective tests and the evidence of possible substance abuse and drug seeking by
plaintiff.
Fourth, the Court agrees with the Magistrate Judge that any issues relating to the ALJ’s
reference to the vocational grids are irrelevant because the ALJ relied upon a vocational expert’s
testimony. Furthermore, despite certain technical errors in the ALJ’s consideration of how long
it would take a typical worker to transfer his or her skills for certain jobs, the actual jobs
identified by the vocational expert are consistent with the limitations of the plaintiff and are
available in the national economy.
For all of these reasons, substantial evidence existed to support the ALJ’s decision.
Case No: 1:09-cv-00132-MP-GRJ

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Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

The Report and Recommendation of the Magistrate Judge is accepted and
incorporated herein.

2.

The decision of the Commissioner, denying benefits, is affirmed.

DONE AND ORDERED this 12th day of July, 2011

s/Maurice M. Paul
Maurice M. Paul, Senior District Judge

Case No: 1:09-cv-00132-MP-GRJ