Gooding v. Colvin

Filing 25

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS for 21 Report and Recommendations. This case is dismissed. Signed by Chief District Judge Louis Guirola, Jr. on 2/18/2016 (wld)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
JOHN GOODING

PLAINTIFF

v.

CAUSE NO. 1:15CV20-LG-RHW

CAROLYN COLVIN, Acting Commissioner
of the Social Security Administration

DEFENDANT

MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION
AND DISMISSING APPEAL
BEFORE THE COURT is the Memorandum and Recommendation [21] of
United States Magistrate Judge Robert H. Walker entered in this cause on January
26, 2016. Magistrate Judge Walker recommends that the Court affirm the decision of
the Commissioner to deny Plaintiff Gooding’s application for disability benefits.
Gooding has filed an objection to the Recommendation, and the Commissioner filed a
response. After a thorough review of the administrative record, the pleadings
submitted by the parties, and the applicable law, the Court adopts the Report and
Recommendation and affirms the decision of the Commissioner.
BACKGROUND
John Gooding filed an application for Social Security disability benefits in 2012,
alleging he became disabled on November 22, 2010 at the age of forty-seven from the
effects of seizure disorder, lung disease, respiratory problems, kidney stones, and
tumors on his tongue. His claim was conclusively denied by the Commission on
November 20, 2014, and he now has appealed that decision.
Gooding worked as a carpenter before becoming disabled by frequent seizures

and a lung disorder which he appears to link to the BP oil spill. He began seeking
medical care for his condition in February 2011, when he was seen by Dr. Michael
Robichauex for pain in the lungs and throughout the body, and episodes of semiconsciousness. Dr. Robichauex treated Gooding for three years on a pro bono basis,
but did not keep any medical records. Gooding also saw Dr. Beaucoudray, a
neurologist, five times beginning on October 11, 2011. Dr. Beaucoudray diagnosed
Gooding with a seizure disorder, although he noted the lack of any documented
seizure events.
A vocational expert testified that Gooding could no longer work in his previous
occupations, but he could perform work with certain limitations. The VE identified
work as a cafeteria attendant, mail clerk and bench assembler as jobs available in the
national economy that Gooding could perform.
STANDARD OF REVIEW
In an appeal from a decision by the Commissioner, the Court’s review is limited
to (1) whether the Commissioner applied the proper legal standard; and (2) whether
the Commissioner’s decision is supported by substantial evidence.• Waters v.
Barnhart, 276 F.3d 716, 718 (5th Cir. 2002).
Substantial evidence is such relevant evidence as a responsible mind
might accept to support a conclusion. It is more than a mere scintilla and
less than a preponderance. A finding of no substantial evidence is
appropriate only if no credible evidentiary choices or medical findings
support the decision. In applying this standard, we may not re-weigh the
evidence or substitute our judgment for that of the Commissioner.
Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001) (quoting Harris v. Apfel, 209 F.3d 413,
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417 (5th Cir. 2000)). It is for the Commissioner to weigh the evidence and to resolve
any conflicts. Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992). If supported by
substantial evidence, the Commissioner’s findings are conclusive and must be
affirmed. Richardson v. Perales, 402 U.S. 389, 401 (1971).
The Court referred the case to the Magistrate Judge for a report and
recommendation. 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). Any party adversely
affected by the recommendation issued may file written objections within fourteen (14)
days of being served with the report and recommendation. 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72(b). A party that files a timely objection is entitled to a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which specific objection is made. United States v. Raddatz, 447
U.S. 667, 673 (1980). The objections must specifically identify those findings or
recommendations to which objections are being made. The district court need not
consider frivolous, conclusive, or general objections. Battle v. U.S. Parole Comm'n,
834 F.2d 419, 421 (5th Cir. 1987). Moreover, where the objections are repetitive of the
arguments already made to the Magistrate Judge, a de novo review is unwarranted.
Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993). Instead, the report and
recommendation is reviewed by the district judge for clear error. Diamond v. Colonial
Life & Acc. Ins. Co., 416 F.3d 310, 315-16 (4th Cir. 2005); see also Camardo v. Gen.
Motors Hourly Rate Emp.’s Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992) (“It is
improper for an objecting party to . . . submit[ ] papers to a district court which are

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nothing more than a rehashing of the same arguments and positions taken in the
original papers submitted to the Magistrate Judge. Clearly, parties are not to be
afforded a second bite at the apple when they file objections to a R & R.”). A court is
not required to make new findings of fact independent of those made by the
Magistrate Judge. Warren v. Miles, 230 F.3d 688, 694-95 (5th Cir. 2000). Nor is a
court required to reiterate the findings and conclusions of the Magistrate Judge.
Koetting, 995 F.2d at 40.
ANALYSIS
1. The Commissioner’s Review
In evaluating a disability claim, the Commissioner conducts a five-step
sequential analysis to determine whether “(1) the claimant is presently working; (2)
the claimant has a severe impairment; (3) the impairment meets or equals an
impairment listed in appendix 1 of the social security regulations; (4) the impairment
prevents the claimant from doing past relevant work; and (5) the impairment prevents
the claimant from doing any other substantial gainful activity.” Audler v. Astrue, 501
F.3d 446, 447-48 (5th Cir. 2007) (citing Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir.
1987)). If, at any step, the claimant is determined to be disabled or not disabled, the
inquiry ends. Id. at 448 (citing Lovelace, 813 F.2d at 58). The burden of establishing
disability rests with the claimant for the first four steps and then shifts to the
Commissioner to show that there is other substantial work in the national economy
that the claimant is able to perform. Id.

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Here, with respect to the first step, the ALJ found that Gooding had not
engaged in substantial gainful activity from the alleged onset date of November 22,
2010 through his date last insured of September 30, 2011. With respect to the second
step, the ALJ found that Gooding suffers from severe impairments, i.e., a seizure
disorder, a lung disorder, and an organic mental disorder. Because these impairments
do not meet or equal, either singly or in combination, one of the impairments listed in
20 C.F.R. Part 404, Subpart P, Appendix 1, the ALJ determined Gooding’s residual
functional capacity (RFC). He concluded that Gooding could perform simple, unskilled
work. Based on this finding, the ALJ concluded at the fourth step that Gooding could
not perform his past relevant work as a carpenter, but there were jobs existing in
significant numbers in the national economy that he could perform. The ALJ
accordingly found that Gooding was not under a “disability” as defined in the Social
Security Act and accompanying regulations during the relevant time period.
2. The Appeal
Gooding presented four points of appeal. He contended that the Commission
erred by (1) failing to address Neurological Listing 11.14; (2) failing to give proper
weight to the opinions of consulting examiner Dr. Morgan and treating physician Dr.
Robichauex; (3) failing to provide valid basis for rejecting a finding of disability under
Neurological Listing 11.02; and (4) failing to order audiometry and caloric or other
vestibular testing to develop the record.
Magistrate Judge Walker set out the relevant facts of this case and legal
standards. Judge Walker determined that substantial evidence, in accord with the
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relevant legal standards, supports the ALJ’s decisions. Magistrate Judge Walker
therefore recommends that the decision of the Commissioner be affirmed.
3. The Objections
Gooding brings three objections to Magistrate Judge Walker’s findings and
conclusions, but they are simply restatements of points of appeal one, two and four
above. Gooding essentially objects to the Magistrate Judge’s failure to correct the
ALJ’s alleged errors. By making these objections, Gooding seeks reconsideration of
arguments he made to the Magistrate Judge, making de novo review unwarranted.
Koetting, 995 F.2d at 40. The Court will review the Report and Recommendation for
clear error, briefly discussing each of Gooding’s objections.
Listings 2.07 and 11.14
Gooding asserts that the ALJ “utterly fails to address the findings of Dr.
Robichauex and treating physician Steve Morris M.D. that plaintiff’s condition meets
the criteria of Listing 11.14.” (Pl. Obj. 2, ECF No. 23). Plaintiff objects that the ALJ
did not mention Listing 11.14 in his decision. Plaintiff also faults the ALJ for failing
to order certain tests that would have developed Gooding’s claim for disability under
Listing 2.07, because the opinion of Dr. Robichauex indicated that Gooding met all the
criteria of that Listing.
The Magistrate Judge noted that the ALJ was not required to accept the
opinion of a treating physician, “nor was he obliged to consider limitations
unsupported by the record - particularly in the complete absence of any treatment
records of the opining doctor.” (R&R 13, ECF No. 21); see Perez v. Barnhart, 415 F.3d
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457, 466 (5th Cir. 2005). The ALJ stated why he gave little weight to Dr. Robichauex’s
opinions – the doctor “provided a number of severely limiting opinions, but no
objective findings or treatment notes upon which these were based.” (Decision 9, ECF
No. 12). Additionally, the ALJ gave little weight to Dr. Morris’ opinion because it “was
offered almost two years after the claimant’s date last insured and there is no
evidence that these limitations were present at that time.” (Id.). As the ALJ gave
proper reasons for discounting opinions of Drs. Robichauex and Morris that might
otherwise have required consideration of a Listing, there was no error resulting from
the ALJ’s failure to mention Listing 11.14 or develop the data regarding Listing 2.07.
Gooding’s Residual Functional Capacity
Gooding contends that the Magistrate Judge improperly concluded that the
ALJ could rely on the findings of non-examining, non-treating physicians in
formulating Gooding’s RFC. Gooding argues that the ALJ should have relied on the
findings and opinions of two treating physicians – Dr. Robichauex and Dr. Morgan.
The ALJ’s reasons for giving little weight to Dr. Robichauex’s opinions are
noted above. Additionally, the ALJ stated that “while [Dr. Robichauex’s] opinions
noted documented seizure activity, the claimant’s treating neurologist [Dr.
Beaucoudray] disagreed and noted that he had no documented seizures.” (Decision 9,
ECF No. 12). The ALJ properly give little weight to Dr. Robichauex’s opinion; it was
not only unsupported by evidence, but it was also controverted by evidence from Dr.
Beaucoudray. See Hamilton-Provost v. Colvin, 605 F. App’x 233, 240 (5th Cir. 2015).
Dr. Morgan was a consultive examiner whose opinion the ALJ gave less than
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significant weight. The ALJ stated that the limitations noted by Dr. Morgan were
based on spinal concerns, but “the claimant’s treatment record during the relevant
time period makes infrequent mention of spinal concerns and the claimant failed to
raise any significant back concerns at hearing. Finally, no imaging of significant
spinal abnormalities appear to be present from the relevant time period.” (Decision 9,
ECF No. 12). As the Magistrate Judge concluded, the ALJ gave proper reasons for
discounting the weight of Dr. Morgan’s opinion in regard to Gooding’s limitations. The
ALJ was not required to adopt all of Dr. Morgan’s opinion solely because he found it
should be given some weight. See Wilkinson v. Comm'r Soc. Sec., 558 F. App’x 254,
256 (3d Cir. 2014).
CONCLUSION
For the reasons stated above, the Court finds that the objections to the
Magistrate Judge’s Report and Recommendation should be overruled. The Report and
Recommendation will be adopted as the findings of this Court.
IT IS THEREFORE ORDERED AND ADJUDGED that the Report and
Recommendation [21] entered by United States Magistrate Judge Robert H. Walker
on January 26, 2016, is ADOPTED as the findings and conclusions of this Court.
This case is DISMISSED.
SO ORDERED AND ADJUDGED this the 18th day of February, 2016.
s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE
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