Regan v. Astrue

Filing 21

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS for 16 Report and Recommendations, denying 12 Motion to Remand filed by Janet Regan. The decision of the Commissioner is Affirmed. Signed by District Judge Halil S. Ozerden on 3/31/2014 (wld)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
JANET REGAN
v.

PLAINTIFF
Civil Action No. 1:12-cv-00310-HSO-RHW

CAROLYN W. COLVIN,
Acting Commissioner of Social Security

DEFENDANT

MEMORANDUM OPINION AND ORDER OVERRULING PLAINTIFF’S
OBJECTIONS [17], ADOPTING MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION [16], DENYING PLAINTIFF’S MOTION TO REVERSE
OR REMAND [12], AND AFFIRMING THE COMMISSIONER OF SOCIAL
SECURITY’S DECISION
This matter is before the Court on Plaintiff Janet Regan’s Objections [17] to
Magistrate Judge Robert H. Walker’s Report and Recommendation [16]. The
Magistrate Judge reviewed Plaintiff Regan’s Motion [12] to Reverse or Remand the
Commissioner of Social Security’s decision denying Plaintiff disability benefits. The
Magistrate Judge recommended that Plaintiff’s Motion be denied and the
Commissioner’s decision affirmed. Rep. and Rec. [16] at 11. Plaintiff has filed
Objections [17] to the Report and Recommendation, and Carolyn W. Colvin, Acting
Commissioner of the Social Security Administration, has filed a Response [20] to
Plaintiff’s Objections.
After review of the record and the relevant law, the Court finds that
Plaintiff’s Objections [17, 18] should be overruled, the Magistrate Judge’s Report
and Recommendation [16] should be adopted in its entirety as the finding of the
Court, Plaintiff’s Motion [12, 13] to Reverse or Remand should be denied, and the
Commissioner’s decision should be affirmed.

I. BACKGROUND
A.

Standard of Review
Because Plaintiff has filed Objections to the Magistrate’s Report and

Recommendation, this Court is required to “make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1); see also Longmire v. Gust, 921 F.2d 620,
623 (5th Cir. 1991) (party filing written objections is “entitled to a de novo review by
an Article III Judge as to those issues to which an objection is made”). In reviewing
the Commissioner’s decision, a federal court considers only whether the
Commissioner applied the proper legal standards and whether substantial evidence
in the record supports her decision. Jones v. Astrue, 691 F.3d 730, 733 (5th Cir.
2012) (citation omitted). Substantial evidence must be more than a scintilla, but it
need not be a preponderance. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995)
(citation omitted).
To the extent that a plaintiff does not object to portions of a magistrate
judge’s report and recommendation, the Court need not conduct a de novo review of
it. 28 U.S.C. § 636(b)(1). In such cases, a court need only review the proposed
findings of fact and recommendation and determine whether they are either clearly
erroneous or contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.
1989).

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B.

Standard for Entitlement to Social Security Benefits
The United States Court of Appeals for the Fifth Circuit has explained that

in order to qualify for Social Security disability benefits
[t]he claimant has the burden of proving she has a medically
determinable physical or mental impairment lasting at least twelve
months that prevents her from engaging in substantial gainful activity.
See 42 U.S.C. § 423(d)(1)(A). Substantial gainful activity is defined as
work activity involving significant physical or mental abilities for pay or
profit. 20 C.F.R. § 404.1572(a) and (b). The ALJ uses a five-step
sequential process to evaluate claims of disability and decides whether:
(1) the claimant is not working in substantial gainful activity; (2) the
claimant has a severe impairment; (3) the claimant’s impairment meets
or equals a listed impairment in Appendix 1 of the Regulations; (4) the
impairment prevents the claimant from doing past relevant work; and (5)
the impairment prevents the claimant from doing any other work. 20
C.F.R. § 404.1520.
The claimant bears the burden of proof on the first four steps and the
burden shifts to the Commissioner for the fifth step. Thus, the claimant
must show first that she is no longer capable of performing her past
relevant work. 20 C.F.R. § 404.1520(e). If the claimant satisfies this
burden, then the Commissioner must show that the claimant is capable
of engaging in some type of alternative work that exists in the national
economy. See Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th Cir. 1987).
Once the Commissioner makes this showing, the burden of proof shifts
back to the claimant to rebut this finding. Id.
Newton v. Apfel, 209 F.3d 448, 452–53 (5th Cir. 2000).
C.

Procedural History
On September 14, 2009, Plaintiff filed an application with the Social Security

Administration for a period of disability and disability insurance benefits, alleging
disability beginning January 31, 2007, through June 30, 2008. R. [8] at 126.
Plaintiff’s last date insured was June 30, 2008. Plaintiff alleges that she became
disabled at the age of 48. R. [8] at 126, 140. The Social Security Administration
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denied Plaintiff’s application on January 26, 2010, and again on reconsideration on
March 20, 2010. R. [8] at 103. Plaintiff filed a written request for a hearing on
March 30, 2010. R. [8] at 103. The Administrative Law Judge [“ALJ”] conducted a
hearing on February 18, 2011. R. [8] at 15.
On March 29, 2011, the ALJ issued his decision and determined that (1)
Plaintiff did not engage in substantial gainful activity from her alleged onset date of
January 31, 2007, through the last date insured of June 30, 2008; (2) through the
last date insured, Plaintiff had the following severe impairments: status post neck
surgery, thoracic spine and lumbar spine; (3) through the last date insured, Plaintiff
did not have an impairment or combination of impairments that met or medically
equaled one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1;
(4) through the last date insured, Plaintiff had the residual function capacity to
perform light work as defined in 20 C.F.R. 404.1567(b), with certain delineated
exceptions; (5) transferability of job skills was not material to the determination of
disability because using the Medical-Vocational Rules as a framework supported a
finding that the claimant was “not disabled,” whether or not Plaintiff has
transferable job skills; and (6) considering Plaintiff’s age, education, work
experience, and residual function capacity, there were jobs that existed in
significant numbers in the national economy that the claimant could have
performed during the purported period of disability. R. [8] at 15-22. The ALJ
concluded that “[b]ased on the application for a period of disability and disability
insurance benefits filed on September 14, 2009, the claimant was not disabled
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under sections 216(I) and 223(d) of the Social Security Act through June 30, 2008,
the last date insured.” R. [8] at 29.
On March 30, 2011, Plaintiff sought review of the ALJ’s decision before the
Appeals Council. R. [8] at 103. Plaintiff submitted additional medical records to
the Appeals Council that had not been provided to the ALJ. The additional medical
records consisted of the treatment records of Dr. Mary Rosenquist, D.O., Plaintiff’s
primary treating physician from 2005 until April 2008. According to Plaintiff’s
counsel, he attempted to obtain Dr. Rosenquist’s treatment records on January 17,
2011, thirty-two days prior to the ALJ hearing, “but received no response from Dr.
Rosenquist.” Mem. [18] at 2. Counsel states that he informed the ALJ of his
difficulties in obtaining the records. Id.
The Appeals Council, with the benefit of Dr. Rosenquist’s newly-submitted
treatment records, “found no reason under [its] rules to review the Administrative
Law Judge’s decision,” and thus “denied [Plaintiff’s] request for review.” R. [8] at 5.
Plaintiff then filed her Complaint [1] in this Court on October 11, 2012, seeking
reversal of the Commissioner’s decision that she is not entitled to disability
benefits, or requesting remand for an additional hearing before the ALJ.
II. ANALYSIS
A.

The Administrative Law Judge’s Decision
Plaintiff’ was last employed in January 2007, and alleges an onset of

disability beginning January 31, 2007. R. [8] at 58. Medical records indicate that
Plaintiff was experiencing neck pain radiating to her arm in April 2007. R. [8] at
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744, 285-86. Around August 2007, Dr. Rosenquist referred Plaintiff to Dr. Terry
Smith, a neurosurgeon. R. [8] at 285-86. Dr. Smith prescribed physical therapy,
which did not alleviate Plaintiff’s symptoms. On September 27, 2007, Dr. Smith
performed a C5-C6 anterior cervical corpectomy and fusion on Plaintiff’s neck. R.
[8] at 285. Dr. Smith’s treatment records indicate that Plaintiff complained of pain
for two months after the surgery, but her strength, sensation, reflexes, and gait
were normal and her incision “look[ed] good.” R. [8] at 278-79. In December 2007,
Plaintiff reported to Dr. Smith that she was almost back to normal and not taking
any pain medication. R. [8] at 19, 276. Dr. Smith directed Plaintiff to return for
treatment “as needed.” R. [8] at 277.
In December 2007, Dr. Lidgia R. Vives-Jackson, M.D., board certified in
general and vascular neurology, diagnosed Plaintiff with cervical radiculopathy,
lumbar degenerative disc disease, and degenerative joint disease. R. [8] at 296.
When Plaintiff last saw Dr. Vives-Jackson on May 19, 2008, forty days prior to the
last date insured, Dr.Vives-Jackson noted that Plaintiff had experienced
improvement in her symptoms after visiting a chiropractor. R. [8] at 292.
Examination by Dr. Vives-Jackson revealed “no objective sensory loss” and “5/5
strength proximally and distally.” R. [8] at 292.
Plaintiff ceased treatment with Dr. Vives-Jackson and transferred her care to
a different neurologist, Dr. Abha Mishra. Her first appointment with Dr. Mishra
was on July 15, 2008, fifteen days after the last date last insured. R. [8] at 485.
Plaintiff complained of neck pain. She stated that she had noticed “some
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improvement with her paresthesias and pain” but still had these symptoms
“intermittent[ly]” in her upper extremities and lower extremities “after doing
physical work during the day.” R. [8] at 485. Over the ensuing few months, Dr.
Mishra’s records indicate that Plaintiff’s symptoms were well-controlled with
medication. R. [8] at 482-483. Dr. Mishra’s records do not indicate that Plaintiff
reported “severe lower extremity pain” until July 13, 2009, 378 days after the last
date insured. R. [8] at 480.
After reviewing the medical evidence, hearing testimony from a vocational
expert, and hearing testimony from Plaintiff, which he found not fully credible, the
ALJ concluded that Plaintiff was not disabled through the last date insured. In so
finding, the ALJ gave controlling weight to the medical opinion of Dr. Smith, while
rejecting the medical opinion of Dr. Mishra. R. [8] at 19-20. The ALJ gave
considerable weight to an Office of Disability Determination Services Disability
Report Form completed by Dr. Smith on October 13, 2009, wherein Dr. Smith
indicated that Plaintiff “was doing fine when I last saw her. No reason for
disability then.” R. [8] at 276. The ALJ also credited the opinions of state agency
physicians and a vocational expert, who opined that Plaintiff could have performed
light work through the last date insured. R. [8] at 20.
The ALJ considered the only document before him pertaining to Dr.
Rosenquist’s treatment of Plaintiff, a “to whom it may concern” statement
completed by Dr. Rosenquist in 2010 regarding her impression of Plaintiff “as of
May 2008.” R. [8] at 492. In her statement, Dr. Rosenquist checked “yes” or “no”
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next to a list of symptoms. She indicated that “as of May 2008,” Plaintiff
experienced the following symptoms: on protracted standing/walking, Plaintiff
experienced low back pain and fatigue; on protracted sitting, she experienced low
back pain; her pain was frequently sufficient to interfere with her concentration; at
least several days per week Plaintiff would have to recline much or most of the day.
R. [8] at 492. Dr. Rosenquist did not complete the section of the statement asking
her to opine regarding whether Plaintiff’s cervical pain was exacerbated by “staring
ahead at a computer screen for protracted periods” or “looking down, as to read or
write for protracted periods.” R. [8] at 492. Dr. Rosenquist also did not complete
the section seeking her views regarding Plaintiff’s residual functional capacity for
employment. R. [8] at 492. The ALJ discounted Dr. Rosenquist’s statement
because it was unaccompanied by supporting treatment records, Dr. Rosenquist
“only marked symptoms,” and Dr. Rosenquist “did not assign any limitations” to
Plaintiff. R. [8] at 20.
The ALJ rejected Dr. Mishra’s medical opinion because Dr. Mishra did not
treat Plaintiff until after the date last insured, and “the severe limitations [he]
assigned the claimant were not present prior to the date last insured.” R. [8] at 20.
The ALJ emphasized that when Plaintiff first saw Dr. Mishra on July 15, 2008,
Plaintiff “admitted improvement with her paresthesias and pain since her neck
surgery.” R. [8] at 20. As further support for his conclusion that Plaintiff was not
disabled prior to the date last insured, the ALJ stressed that “[m]ost of the
claimaint’s treatment has been since her date last insured. No physician prior to
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that time gave her any limitations or stated she was unable to work.” R. [8] at 20.

The ALJ emphasized that in December 2007, Plaintiff “admitted to getting
back to almost normal following her neck surgery and examinations were
essentially unremarkable.” R. [8] at 20. With respect to Plaintiff’s reported
symptoms, the ALJ found:
She had surgery on her neck in September 2007, which
helped. She has problems with her left arm following
surgery. When her blood pressure is high, she takes
medications. She has problems with her back. She can
walk 30 yards. She can lift ten pounds. She has pain when
she turns her head around. She has pain in her neck and
back and down to her calves. Her pain level is usually eight,
but some days it is worse. On bad days, she lies down. At
least two days a week she is in bed all day. Her medications
cause her to have difficulty concentrating.
After careful consideration of the evidence, the undersigned
finds that the claimant’s medically determinable
impairments could reasonably be expected to cause the
alleged symptoms; however, the claimant’s statements
concerning the intensity, persistence and limiting effects of
the these symptoms are not credible to the extent they are
inconsistent with the above residual functional capacity
assessment.
R. [8] at 19.
B.

Plaintiff’s Motion to Reverse or Remand
In her Motion [12] to Reverse or Remand, Plaintiff seeks to overturn the

ALJ’s finding that she was not disabled through the last date insured. Plaintiff
argues that the ALJ erred by (1) rejecting the medical opinion or Dr. Mishra, (2)
giving too much weight to the opinion of Dr. Smith, and (3) failing to adequately
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develop the record by obtaining and reviewing the treatment records of Dr.
Rosenquist. Plaintiff also argues that the Appeals Council erred because it did not
state any reason, much less good cause, for not adopting the findings in Dr.
Rosenquist’s treatment records.
Plaintiff asserts that Dr. Mishra’s opinion should have been credited and
given more weight than Dr. Smith’s because Dr. Mishra’s treatment of Plaintiff was
more proximate to the last date insured. Mem. [13] at 3-4. Dr. Mishra first treated
Plaintiff fifteen days after the date last insured, while Dr. Smith’s last treatment of
Plaintiff was six months and 26 days prior to the last date insured. Id. Plaintiff
contends that Dr. Smith’s testimony should not have been given considerable
weight because Dr. Smith treated Plaintiff’s cervical spine only and did not “treat
nor even appear to be aware of plaintiff’s lumbar spine impairments.” Mem. [18] at
9.
C.

The Magistrate Judge’s Report and Recommendation
After reviewing the entire record, the Magistrate Judge concluded that

substantial evidence in the record supported the ALJ’s decision and that the
decision was in accord with relevant legal standards. Rep. and Rec. [16] at 11. The
Magistrate Judge found that “[t]he ALJ did not err in choosing to give greater
weight to the medical opinion of [Plaintiff’s] treating neurosurgeon Dr. Terry Smith
than other physicians.” Rep. and Rec. [16] at 10. The Magistrate Judge determined
that Dr. Vives-Jackson’s treatment records were consistent with Dr. Smith’s in that
both indicated that Plaintiff experienced significant improvement after surgery. Id.
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at 3-4. The Magistrate Judge stressed that even Dr. Mishra’s early treatment
records of Plaintiff indicate that Plaintiff’s pain and fatigue symptoms had
improved since surgery. R. [8] at 474-85. The Magistrate Judge stated that “[t]he
ALJ’s finding that [Plaintiff] reported pain more severe and disabling than her
medical records substantiate is amply supported by the medical evidence of record.”
Rep. and Rec. [16] at 6. The Magistrate Judge concluded that “[s]ubstantial
evidence exists to support the ALJ’s decision that Dr. Rosenquist’s opinion was
untimely and that it did not indicate or establish any disabling limitations on or
before [Plaintiff’s] date of last insurance.” Id. at 9.
D.

Plaintiff’s Objections to the Magistrate Judge’s Report and Recommendation
Plaintiff raises the same arguments as Objections to the Magistrate Judge’s

Report and Recommendation that she raised in her Motion to Reverse or Remand.
The Memorandum [18] in support of Plaintiff’s Objections [17] is a largely verbatim
recitation of the Memorandum [13] in support of her Motion [12] to Reverse or
Remand. The only difference between the Memorandums is that Plaintiff added
approximately fifteen paragraphs intermittently to the Memorandum in Support of
her Objections.1

1

Plaintiff discusses medical records and testimony in her Memorandums but
does not direct the Court to those portions of the record where the medical records
or testimony are located. As the Fifth Circuit has observed, the Court is not
required to search for evidence buried in the record to support Plaintiff’s claims. de
la O v. Housing Auth. of City of El Paso, Texas, 417 F.3d 495, 501 (5th Cir.
2005)(citing United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)).
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E.

Analysis of Plaintiff’s Objections
Having thoroughly reviewed the record, the Court concludes that the ALJ

applied the proper legal standards and that his decision finding Plaintiff not
disabled through the last date insured is supported by substantial evidence in the
record.
1.

The Weight Accorded to Dr. Smith’s Opinion

The ALJ did not err when he accorded Dr. Smith’s opinion controlling weight
as Dr. Smith’s opinion is supported by objective medical evidence, buttressed by the
nature and extent of Dr. Smith’s treatment of Plaintiff, and Dr. Smith’s treatment
of Plaintiff occurred during the relevant time period. Plaintiff has not set forth
persuasive evidence indicating that Dr. Smith was unaware of Plaintiff’s other
impairments, particularly her lumbar spine, when he opined that she was “doing
fine” in December 2007 and there was “[n]o reason for disability then.” R. [8] at
276. Nor is the Court persuaded by Plaintiff’s argument that her “bases for urging
disability were primarily concerned with limitations imposed by her back.” Mem.
[18] at 12-13. Plaintiff has pointed to no specific portion of the record which
supports this assertion, and the Court finds that the record as a whole does not
support it. Plaintiff’s primary complaints throughout her medical records relate to
her cervical spine.
In October and November 2007, Dr. Smith’s examinations revealed that
Plaintiff had normal strength, sensation, reflexes, and gait, and her incision
“look[ed] good.” R. [8] at 277. In December 2007, Plaintiff reported to Dr. Smith
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that she was almost back to normal and not taking any pain medication. R. [8] at
19, 276. Dr. Smith’s December 2007 examination was so unremarkable that he
directed Plaintiff to return for treatment “as needed.” R. [8] at 277.
The ALJ did not err in considering the statement of Dr. Smith, completed in
2010, that Plaintiff was not disabled in December 2007, the last date he treated her.
While the final responsibility for determining disability is reserved to the
Commissioner, the ALJ is not prohibited from considering a physician’s medical
opinion that a claimant is not disabled when it is supported by objective medical
evidence. 20 C.F.R. § 404.1527(d). Dr. Smith’s ultimate conclusion regarding
disability is consistent with his contemporaneous treatment records. The medical
opinions of Dr. Vives-Jackson, the state agency physicians, and even the early
treatment records of Dr. Mishra, indicate that Plaintiff’s condition improved after
surgery and report no impairments so severe as to be considered disabling.
To the extent that the opinions of the physicians other than Dr. Smith could
be viewed as conflicting with Dr. Smith’s views, conflicts in the evidence are for the
ALJ to resolve. Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). The ALJ is
entitled to determine the credibility of medical experts and lay witnesses and weigh
their opinions accordingly. Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994).
The ALJ properly performed this function as the trier of fact, weighing and
resolving any conflicts in the evidence. The ALJ’s findings of fact which are
supported by substantial evidence are conclusive. Ripley v. Chater, 67 F.3d 552,
555 (5th Cir. 1995). This Court is not permitted to substitute its judgment for the
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ALJ’s even if it finds that the evidence preponderates against his decision. Bowling
v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994). Dr. Smith’s treatment records and
2010 statement, the ALJ’s findings that Plaintiff’s testimony regarding her
symptoms was not fully credible, and the consistency of this evidence with the
record as a whole, easily exceed “more than a mere scintilla” of evidence. The ALJ’s
decision must be affirmed.
2.

The Rejection of Dr. Mishra’s Opinion

The ALJ did not err in rejecting Dr. Mishra’s 2010 statement indicating that
Plaintiff suffered from all listed symptoms and limitations. Dr. Mishra’s 2010
statement is inconsistent with the record as a whole, including Dr. Mishra’s late
2008 and early 2009 treatment records. R. [8] at 458-59. Plaintiff did not report
“severe extremity pain” to Dr. Mishra until July 17, 2009, over a year after the last
date insured. In the seven months prior to that time, Plaintiff reported
improvement after surgery and intermittent pain “after doing physical work during
the day.” R. [8] at 485. A subjective complaint of intermittent pain does not
indicate an impairment of disabling severity. Dr. Mishra’s 2010 statement was also
properly discounted because Dr. Mishra did not indicate in the statement whether
she was referring to Plaintiff’s 2010 condition or her condition on or before the last
date insured.
Plaintiff has not offered sufficiently persuasive case law or other legal
authority supporting her argument that the ALJ erred by crediting the opinion of a
neurosurgeon who treated Plaintiff and performed surgery on her during the
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relevant time period over the opinion of Dr. Mishra, who only observed Plaintiff
after the last date insured and whose contemporaneous treatment records, even
after the last date insured, do not support the severe limitations Dr. Mishra
attributed to Plaintiff in 2010. Dr. Mishra’s treatment records do not address
Plaintiff’s condition during the relevant time period and are thus not material.
Joubert v. Astrue, No. 08-40175, 287 F. App’x 380, 383-84 (5th Cir. July 22, 2008).
“Evidence is not material for purposes of remand unless it ‘related to the time
period for which disability benefits were denied.’” Id. (citing Ripley, 67 F.3d at 555).
Plaintiff has offered no case law or other legal authority supporting her
assertion that Dr. Mishra’s opinion should have been given controlling weight
because her first treatment of Plaintiff in July 2008 was more proximate to the last
date insured of June 30, 2008, than Dr. Smith’s last treatment of Plaintiff in
December 2007. Dr. Smith’s assessment of Plaintiff’s condition six months prior to
the date last insured is consistent with Dr. Vives-Jackson’s unremarkable
examination of Plaintiff forty days prior to the last date insured.
3.

Dr. Rosenquist’s Treatment Records and the Weight Accorded Her
2010 Statement

It was not incumbent upon the ALJ to obtain Dr. Rosenquist’s treatment
records before rendering a decision “[b]ecause the record contained ample objective
and opinion evidence supporting the ALJ’s conclusions . . . .” Jones, 691 F.3d at
733. An ALJ is not required to “order more evidence where the record is sufficient
to establish whether the claimant is disabled.” Id. Remand is not appropriate

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unless there is “a reasonable probability that the new evidence would change the
outcome of the decision.” Joubert, 287 F. App’x at 383. “[R]emand is justified only
if the claimant makes a showing of ‘good cause’ for failing to provided th[e] evidence
at the original proceedings.” Id. In this case, not attempting to obtain Dr.
Rosenquist’s treatment records until thirty-two days prior to the ALJ hearing does
not rise to the level of “good cause” sufficient to justify remand.
Even if the Court were to find that the ALJ was required to obtain Dr.
Rosenquist’s records, the Court would nevertheless affirm because Plaintiff has not
demonstrated prejudice. Jones, 691 F.3d at 734. The ALJ considered hundreds of
pages of Plaintiff’s medical records and heard Plaintiff’s testimony, as well as the
testimony of a vocational expert. Plaintiff has not directed the Court to any portion
of Dr. Rosenquest’s treatment records which, to a reasonable probability, would
have changed the ALJ’s decision. Ripley, 67 F.3d at 555. The mention of Plaintiff’s
subjective complaint of “arm pain” in an April 21, 2008, treatment record does not
establish an impairment of disabling severity. Hames v. Heckler, 707 F.2d 162, 165
(5th Cir. 1983). Dr. Rosenquist’s 2010 “to whom it may concern” statement
indicating that Plaintiff must recline several days a week as needed, and at least
once a week recline much or most of the day, is not supported by Dr. Rosenquist’s
contemporaneous treatment records during the relevant time period, which reflect
nothing more than Plaintiff’s subjective complaint of arm pain and an
unremarkable objective medical examination. R. [8] at 492. Furthermore, Dr.
Rosenquist did not answer the portion of the “to whom it may concern” statement
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requesting that she address Plaintiff’s residual functional capacity for employment.
Dr. Rosenquist also did not indicate whether Plaintiff was prevented from staring
ahead at a computer screen for protracted periods or looking down to read or write
for protracted periods.
4.

The Appeals Council’s Decision Denying Review

Finally, Plaintiff has not cited the Court to any case law or sufficiently
persuasive legal authority which stands for the proposition that the ALJ’s decision
should be overturned because the Appeals Council’s decision did not expressly state
why Dr. Rosenquist’s records did not justify review. The Appeals Council’s decision
reflects that the Appeals Council considered the new evidence and found that it
“does not provide a basis for changing the Administrative Law Judge’s decision.” R.
[8] at 6. Even if the Court were to find that the Appeals Council was required to
expressly state its reasons for discounting the new evidence, Plaintiff has not shown
that Dr. Rosenquist’s treatment records, to a reasonable probability, would have
changed the Appeals Council’s decision. As stated earlier, the only treatment
records from Dr. Rosenquist during the relevant time period indicate that Plaintiff
complained of arm pain in April 2008, but Dr. Rosenquist’s physical examination of
Plaintiff was unremarkable. This objection should be overruled.
In sum, because Plaintiff has not established prejudice justifying a remand
and because substantial evidence in the record supports the ALJ’s decision, the
ALJ’s decision denying Plaintiff disability benefits should be affirmed.

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III. CONCLUSION
As required by 28 U.S.C. § 636(b)(1), the Court has conducted an independent
de novo review of the record and those matters raised in the Plaintiff’s Objections.
For the reasons set forth above, the Court concludes that Plaintiff’s Objections [17,
18] should be overruled. To the extent Plaintiff did not object to portions of the
Magistrate Judge’s Report and Recommendation [16], the Court finds that those
portions are neither clearly erroneous nor contrary to law. United States v. Wilson,
864 F.2d 1219, 1221 (5th Cir. 1989). The Court further concludes that the
Magistrate’s Report and Recommendation [16] should be adopted as the finding of
the Court. Plaintiff’s Motion [12] to Reverse or Remand should be denied.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Objections
[17, 18] filed by Plaintiff Janet Regan in this case are OVERRULED, and the
Report and Recommendation [16] of Magistrate Judge Robert H. Walker is adopted
in its entirety as the finding of this Court.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Plaintiff Janet
Regan’s Motion [12] to Reverse or Remand is DENIED.
IT IS, FURTHER, ORDERED AND ADJUDGED that, the decision of the
Commissioner is AFFIRMED. A separate judgment will be entered in accordance
with this Order as required by Federal Rule of Civil Procedure 58.
SO ORDERED AND ADJUDGED, this the 31st day of March, 2014.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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