Johnson v. Colvin
Filing
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ORDER granting Defendant's 11 Motion to Affirm; denying Plaintiff's 14 Motion for an Order Awarding Disability Benefits; and adopting the Magistrate Judge's 17 Report and Recommendations. This matter is dismissed with prejudice. Signed by District Judge Keith Starrett on September 16, 2014 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
CHARLES JOHNSON, JR.
V.
PLAINTIFF
CIVIL ACTION NO. 2:13-CV-114-KS-MTP
CAROLYN W. COLVIN
DEFENDANT
MEMORANDUM OPINION AND ORDER
For the reasons stated above, the Court adopts the Magistrate Judge’s Report
and Recommendation [17] and incorporates it with this order to form the opinion of the
Court, overrules Plaintiff’s objections [18], grants the Commissioner’s Motion for an
Order Affirming [11] her decision, denies Plaintiff’s Motion for an Order Awarding
Disability Benefits [14], and affirms the Commissioner’s decision denying Plaintiff’s
application for benefits.
A.
Procedural Background
Plaintiff applied for SSI benefits on April 11, 2011. He claimed that he was
disabled by the residual pain from being stabbed in the groin in June 2008. After his
claim was denied, Plaintiff requested a hearing before an ALJ. On April 13, 2012,
Plaintiff’s case was heard by an ALJ, who ultimately decided that Plaintiff was not
disabled. Plaintiff requested a review of the ALJ’s decision, but the Appeals Council
denied his request for review, rendering the ALJ’s decision the Commissioner’s final
decision. Plaintiff filed his Complaint in this Court on May 29, 2013, challenging the
ALJ’s decision and demanding an award of benefits. The parties filed dispositive
motions [11, 14], and the Magistrate Judge entered a Report and Recommendation [17]
that the Court affirm the Acting Commissioner’s decision and dismiss this matter with
prejudice. Plaintiff filed his objections to the Report and Recommendation [18], and
this case is ripe for resolution.
B.
Discussion
When a party objects to a Magistrate Judge’s report and recommendation, the
Court must “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. Guste, 921 F.2d 620, 623 (5th Cir. 1991). However, the
Court is not required to “reiterate the findings and conclusions of the magistrate
judge.” Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993). Furthermore, the Court
is not required to consider “frivolous, conclusive, or general objections . . . ,” Battle v.
United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987), and “merely reurging
arguments contained in the original petition” does “not raise a factual objection” to the
Magistrate Judge’s findings. Edmund v. Collins, 8 F.3d 290, 293 n. 7 (5th Cir. 1993).
The Court’s review of the Commissioner’s final decision is limited “to two
inquiries: (1) does the record contain substantial evidence which supports the [ALJ]’s
position; and (2) did the [ALJ] apply the proper legal standards in evaluating the
evidence?” Hollis v. Bowen, 837 F.2d 1378, 1382 (5th Cir. 1988). Substantial evidence
“must do more than create a suspicion of the evidence of the fact to be established.”
Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983). But a “finding of no substantial
evidence is appropriate only if no credible evidentiary choices or medical findings
support the decision.” Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). Conflicts in the
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evidence are for the Commissioner, rather than the Court, to resolve, Selders v.
Sullivan, 914 F.2d 614, 617 (5th Cir. 1990), and the Court may not reweigh the
evidence, try issues de novo, or substitute its judgment for the Commissioner’s, “even
if the evidence preponderates against” the Commissioner’s decision. Harrell v. Bowen,
862 F.2d 471, 475 (5th Cir. 1988). If the Commissioner’s decision is supported by
substantial evidence, it must be affirmed. Selders, 914 F.2d at 617. “Procedural
perfection in administrative proceedings is not required so long as the substantial
rights of a party have not been affected.” Audler v. Astrue, 501 F.3d 446, 448 (5th Cir.
2007) (punctuation omitted).
“An individual applying for disability and SSI benefits bears the initial burden
of proving that he is disabled for purposes of the Social Security Act.” Harrell, 862 F.2d
at 475. To determine whether a claimant is disabled, the ALJ employs a five-step
analysis. 20 C.F.R. § 416.920(a)(4). “A finding that the claimant is disabled or not
disabled at any point in the five-step process is conclusive and terminates the . . .
analysis.” Harrell, 862 F.2d at 475. Only the second step of the analysis, in which the
claimant must prove that his impairment is “severe,” is relevant here. See 20 C.F.R.
§ 416.920(a)(4)(ii).
A “severe” impairment “significantly limits [one’s] physical or mental ability to
do basic work activities . . . .” 20 C.F.R. § 404.1520(c); 20 C.F.R. § 416.920(c). “An
impairment can be considered as not severe only if it is a slight abnormality having
such minimal effect on the individual that it would not be expected to interfere with
the individual’s ability to work, irrespective of age, education, or work experience.”
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Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985).
1.
Substantial Evidence to Support the Decision
The record contains substantial evidence to support the Commissioner’s decision
that Plaintiff’s alleged impairment is not “severe.” The record contains no evidence that
Plaintiff sought or obtained medical treatment at the time of the alleged stabbing in
2008. Indeed, Plaintiff later provided contradictory information to medical providers
as to when he was allegedly stabbed. The record also contains no objective evidence to
substantiate Plaintiff’s subjective reports of pain. Plaintiff first sought treatment in
2009 while incarcerated, and he made multiple complaints that year. However, he did
not seek treatment again until he needed a medical opinion to support his claim for
disability benefits.
After Plaintiff applied for benefits, the Disability Determination Services
obtained the opinion of Dr. Theodore E. Okechuku, who found that, although Plaintiff
walked with a limp, he enjoyed full range of motion in his hip joints, and had no
difficulty walking on his heels, squatting, doing heel-to-toe exercises, or standing on
his toes. Dr. Okechuku’s impression was that Plaintiff had “left leg weakness – possible
sciatic nerve damage.” He described it as a “moderate impairment . . . with regard to
standing, bending, stooping, squatting, reaching, pushing, pulling, etc.” Dr. Robert
Culpepper, an SSI Medical Consultant, considered these findings and found that
Plaintiff’s “stated severity of symptoms is not credible,” and that the objective evidence
“did not indicate necessity of [Plaintiff’s] cane for ambulation . . . .”
As noted above, a “finding of no substantial evidence is appropriate only if there
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is no credible evidentiary choices or medical findings support the decision.” Boyd, 239
F.3d at 704. The evidence cited above provides both credible evidence and medical
findings in support of the Commissioner’s decision to deny benefits. Accordingly, the
Court finds that there is substantial evidence to support the decision.
2.
Correct Legal Standard
The Court also finds that the ALJ applied the correct legal standard. He quoted
the relevant language from Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985), and the
Fifth Circuit continues to apply that standard. See Bayer v. Colvin, 557 F. App’x 280,
287 (5th Cir. 2014); Henderson v. Colvin, 520 F. App’x 268, 275 (5th Cir. 2013).
3.
Plaintiff’s Objections
Plaintiff’s briefing is largely incomprehensible, but his objections to the
Magistrate Judge’s Report and Recommendations can be reduced to five general
categories.
a.
Substantial Evidence
First, Plaintiff argues that the Commissioner’s decision was not supported by
substantial evidence. This objection is overruled. As explained above in detail, the
record contains substantial evidence to support the Commissioner’s decision to deny
benefits. Furthermore, “merely reurging arguments contained in the original petition”
does “not raise a factual objection” to the Magistrate Judge’s findings. Edmund, 8 F.3d
at 293 n. 7.
b.
Hillman’s Opinion
Next, Plaintiff argues that the ALJ erred by not relying upon or giving greater
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weight to the opinion of Elisa Hillman, a nurse practitioner who provided Plaintiff with
a medical opinion to support his claim for disability benefits in September 2011. This
objection is overruled.
“[O]rdinarily the opinions, diagnoses, and medical evidence of a treating
physician who is familiar with the claimant’s injuries, treatments, and responses
should be accorded considerable weight in determining disability.” Myers v. Apfel, 238
F.3d 617, 621 (5th Cir. 2001). Ultimately, though, “the ALJ must decide the claimant’s
status,” and “when good cause is shown, less weight, little weight, or even no weight
may be given to the [treating] physician’s testimony. The good cause exceptions we
have recognized include disregarding statements that are brief and conclusory, not
supported by medically acceptable clinical laboratory diagnostic techniques, or
otherwise unsupported by the evidence.” Id. In summary, “the ALJ is entitled to
determine the credibility of medical experts . . . and to weigh their opinions and
testimony accordingly,” Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir. 1990), and the
Court is not permitted to substitute its judgment for his. Harrell, 862 F.2d at 475.
Nurse Hillman is not a physician, and she was no more familiar with Plaintiff’s
injuries and treatments than Dr. Okechuku, Dr. Culpepper, or even the ALJ. She
conducted no testing, and she cited no objective evidence in her notes. She merely
recorded Plaintiff’s subjective, conclusory complaints. It was within the ALJ’s
discretion to disregard her testimony.
c.
Plaintiff’s Testimony
Plaintiff also argues that the ALJ improperly disregarded his testimony. This
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objection is overruled. “The ALJ must consider subjective complaints of pain, but it is
within his discretion to determine the pain’s disabling nature.” Dunbar v. Barnhart,
330 F.3d 670, 672 (5th Cir. 2003). Indeed, the ALJ is required to determine “whether
the objective medical evidence shows that the claimant has a medically determinable
impairment that could reasonably be expected to produce the claimant’s complained-of
symptoms, such as pain.” Herrera v. Comm’r of Soc. Sec., 406 F. App’x 899, 905 (5th
Cir. 2010) (citing 20 C.F.R. § 404.1529(c)(1)). “If the claimant’s symptoms are not
substantiated by objective medical evidence, the adjudicator must consider all of the
evidence in the case record, including any statements by the individual . . . concerning
the individual’s symptoms and then make a finding on the credibility of the individual’s
statements about symptoms and their functional effects.” Id. (citation and punctuation
omitted). The ALJ fulfilled these requirements.
Plaintiff also argues that the ALJ erred by failing to consider his testimony that
he never sought additional treatment after seeing Nurse Hillman because he could not
pay for it. “Procedural perfection in administrative proceedings is not required so long
as the substantial rights of a party have not been affected.” Audler, 501 F.3d at 448.
Regardless of Plaintiff’s inability to pay a doctor after seeing Hillman, there exists a
gap of over a year between Plaintiff’s complaints in prison and his visit to Nurse
Hillman. More importantly, the record contains no objective medical evidence to
support Plaintiff’s claim. Therefore, the ALJ’s failure to consider Plaintiff’s testimony
on this issue can not have affected Plaintiff’s substantial rights insofar as it is
irrelevant to the basis of the ALJ’s decision.
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d.
5th and 14th Amendments
Plaintiff argues that the ALJ’s decision violates his right to due process
protected by the Fifth and Fourteenth Amendments. Plaintiff failed to specify what
aspects of the administrative process violated his right to due process, and the Court
declines to guess. Battle, 834 F.2d at 421 (the Court is not required to consider “general
objections . . .”).
e.
Conspiracy
Plaintiff accuses this Court, the ALJ, and the Commissioner of conspiring to
deprive him of his right to a full and fair hearing. The record contains no evidence of
a conspiracy. This objection is overruled.
C.
Conclusion
As required by 28 U.S.C. § 636(b)(1), the Court conducted an independent review
of the entire record and a de novo review of the matters raised by Plaintiff’s objections.
For the reasons stated above, the Court overrules Plaintiff’s objections to the
Magistrate Judge’s Report and Recommendation [17]. Accordingly, the Court adopts
the Report and Recommendation [17] and incorporates it with this order to form the
opinion of the Court.
The Court grants the Acting Commissioner’s Motion for an Order Affirming [11]
her decision, denies Plaintiff’s Motion for an Order Awarding Disability Benefits [14],
and affirms the Acting Commissioner’s decision denying Plaintiff’s application for
benefits. This matter is dismissed with prejudice.
SO ORDERED AND ADJUDGED this 16th day of September, 2014.
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s/Keith Starrett
UNITED STATES DISTRICT JUDGE
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