Montgomery v. Colvin

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATIONS of Magistrate Judge Michael T. Parker dismissing case with prejudice. A separate Judgment shall be entered. Signed by District Judge Keith Starrett on March 31, 2015 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION

STANLEY E. MONTGOMERY
VS.

CIVIL ACTION NO. 2:13cv269-KS-MTP

CAROLYN W. COLVIN

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATIONS AND DISMISSING
CASE WITH PREJUDICE, ETC.
This cause is before this Court on Defendant's Motion [10] to affirm the decision of the
Commissioner, the Report and Recommendations [13] of Magistrate Judge Michael T. Parker,
the Objections [14] to the Magistrate Judge's Report and Recommendations, the Commissioner's
Response [15] thereto, Plaintiff's Reply [16], and the record and pleadings currently on file
herein, and the Court after considering the same does hereby find as follows, to-wit:
PROCEDURAL HISTORY
On March 12, 2010,1 Plaintiff filed applications for disability insurance benefits and
supplemental security income, alleging a disability onset date of February 4, 2009. (Administrative
Record [8], at 31; 139-146.)2 These applications were denied both initially and upon reconsideration.

1

The undersigned notes a discrepancy as to the date that Plaintiff filed his applications.
The ALJ decision (Doc. 8. at 28), Plaintiff’s Brief [9] and Defendant’s Memorandum in Support
of the Motion to Affirm the Commissioner’s Decision [12] all list March 12, 2010 as the date,
while the documents in the record cited above show March 23, 2010.
2

For ease of reference and pursuant to the Court’s Order [3] directing filing of briefs, the
administrative record is cited to herein by reference to the Court’s docket number and docket
page number in the federal court record and not the Administrative Record page number.
1

(8] at 119-124; 127-129.) Thereafter, Plaintiff requested a hearing before an Administrative Law
Judge (“ALJ”). ([8] at 134-135.)
On January 21, 2011, a hearing was convened before ALJ Charles C. Pearce. ([8] at 50-98.)
The ALJ heard testimony from Plaintiff and Thomas J. Stewart, a vocational expert (“VE”) ([8] at
88-94.) On February 10, 2011, the ALJ issued a finding that Plaintiff was not disabled. ([8] at 2845.) Plaintiff appealed this decision and submitted additional evidence to the Appeals Council. The
Appeals Council denied Plaintiff’s request for review, rendering the ALJ’s decision the final
decision of the Commissioner. ([8] at 23-25).3
Plaintiff filed his Complaint on December 9, 2013, requesting an order from this Court
reversing the Commissioner’s final decision and directing the Commissioner to award benefits to
the Plaintiff. Complaint [1] at 2. The Commissioner answered the Complaint, denying that Plaintiff
is entitled to any relief. Answer [7]. The parties having briefed the issues in this matter pursuant
to the Court’s Scheduling Order [3], the matter is now ripe for decision.
MEDICAL/FACTUAL HISTORY
Plaintiff was forty-five years old at the time of the ALJ’s decision on February 10, 2011. ([8]
at 28, 139.) Plaintiff has a high school education and work experience as a butcher, electrician’s
helper, electrician and jailer. ([8] at 173; 200-07.) In his disability report, Plaintiff alleged that he
has been unable to work since February 4, 2009, due to anxiety, depression, obsessive-compulsive
disorder, social phobia, sleep apnea, cardiovascular disease, ulcers, acid reflux, hypertension, blurred
vision, impaired hearing, dislocated disc, inflamed prostate, allergies, suicidal tendencies, and

3

As described infra, the Appeals Council denied the Plaintiff’s request for review twice –
once on June 18, 2012 and again on October 15, 2013.
2

“hearing voices.” ([8] at 172.)
The administrative record in this case contains voluminous medical documents from the
Veteran’s Affairs (VA) hospital in Jackson. Many of these documents reference Plaintiff’s previous
conditions and treatments, although those earlier records are not included. For instance, although
there is no record, Plaintiff has reported that he had spinal surgery in a civilian hospital in 2001 or
2002, with a good result. He claims that the operation was microdiskectomy in the lumbar area. ([8]
at 311). Plaintiff also claims that he sustained a skull fracture in 2004, although there is no record
of treatment. Plaintiff claims that he also suffers from ulcers, but, likewise, his recent medical
records do not reflect any treatment for ulcers.
VA Records from 2008 reflect that Plaintiff has been diagnosed with sleep apnea and uses
a c-pap to sleep. ([8]-832; 861). However, Plaintiff had a somnoplasty performed in March 2009 and
bilateral turbinate reduction performed in April 2009, and both procedures seemed to improve his
sleep apnea. ([8] at 929; 944 ).
Beginning in February 17, 2009, Plaintiff began monthly psychological and psychiatric
treatment at the VA Mental Health Out-Patient Clinic in Jackson. ([8] at 960; see generally B6F &
B7F). At the clinic, Plaintiff has been treated for obsessive-compulsive disorder, anxiety and panic
disorder.4 Multiple physicians noted that Plaintiff reported obsessive-compulsive behavior, such as
using only one trash can in the house, vacuuming after anyone walks into his home, and turning on
the kitchen light three times. ([8] at 850; 928). The physician notes show that Plaintiff’s symptoms

4

The records reflect that Plaintiff saw multiple physicians at the VA hospital. Some
summarily noted that Plaintiff suffered from panic disorder ([8] at 933), while others indicated
that Plaintiff did not present the requisite symptoms to meet the criteria for a panic disorder. ([8]
at 939).
3

were eased by going to church and ([8] at 778) and playing with his niece and nephew ([8] at 783;
791).
On January 25, 2010, Dr. Brandin Ross examined Plaintiff in connection to complaints
about rapid heart beat. Dr. Ross’s notes from that appointment reflect that in 1987, Plaintiff had been
diagnosed with sinus tachycardia due to using Afrin nasal spray and was advised to discontinue use.5
Dr. Ross noted that Plaintiff used several medications to control his blood pressure, heart rate and
hypertension. Dr. Ross conducted an echocardiogram and noted that it failed to reveal cardiomegaly
or ventricular hypertrophy, and the Plaintiff denied any chest pain. Plaintiff’s pulse was 53 beats per
minute. Dr. Ross concluded that Plaintiff’s hypertension was well-controlled and that his tachycardia
was asymptomatic. ([8] at 1029-1031).
Dr. Todd Coulter performed a consultative examination of Plaintiff on May 1, 2010. The
report reflects that Plaintiff complained of a dislocated lumbar, a history of degenerative disc disease
and lower back pain. Dr. Coulter noted that Plaintiff used a single prong cane, but that the cane was
not prescribed. Under the diagnosis section of the report, Dr. Coulter listed “degenerative joint
disease in the lumbosacral spine.” Under the functional assessment section, Dr. Coulter opined that
Plaintiff had no conditions that would impose limitations. Dr. Coulter found that Plaintiff was
limited to climbing, balancing, stooping, kneeling, crouching and crawling only occasionally, but
that Plaintiff had no manipulative activities or environmental limitations. He found that Plaintiff
could stand or walk six hours in an eight hour day, and carry fifty pounds occasionally and twenty

5

However, at a July 14, 2010 appointment with Dr. Raymond Kimble, Plaintiff
complained that his anxiety was connected to tachycardia. Dr. Kimble noted that there was no
record had actually been diagnosed with tachycardia, based on primary care provider notes and
EKGs going back to 2007. ([8] at 1026).
4

pounds frequently. However, in a contradictory finding, Dr. Coulter opined that Plaintiff needed a
cane for balance in all types of terrain. ([8] at 255-59).
At some point in May 2010, Plaintiff was diagnosed with Type II diabetes mellitus and
hypertriglyceridemia.6 ([8] at 682). However, on August 25, 2010, Plaintiff was discharged from the
diabetes clinic, as his diabetes was well-controlled. ([8] at 605).
On May 20, 2010, Plaintiff was examined by state agency medical consultant Dr. Martha
D’Ilio, who completed a Comprehensive Medical Status Examination. At the interview, Plaintiff
reported that he could bathe and dress himself without assistance, slept six hours a night, and
prepared his own meals. Plaintiff reported that he cared for his dogs and goes to the VA, church and
the grocery store every week. He reported that due to his obsessive compulsive disorder, he
frequently cleans his house.
Dr. D’Ilio noted that Plaintiff was appropriately dressed and groomed, that he drove himself
to the interview, and that he made adequate eye contact throughout the interview. His speech was
clear, logical and goal oriented. She noted that Plaintiff was taking a substantial number of
medications. There was no evidence of a formal thought disorder, psychotic features, or anxiety.
Plaintiff did report some symptoms of depression, claimed he thought of suicide innumerable times,
and asserted that he has a repeating hallucination in which he sees a hand coming through the door.
However, Dr. D’Ilio found that Plaintiff’s thought processes were coherent and content appropriate.
Dr. D’Ilio indicated that Plaintiff’s mood disorder might stem from the extensive medications he was
taking and due to his chronic pain. Dr. D’Ilio concluded that Plaintiff would have moderate

6

Hypertriglyceridemia is a condition in which triglyceride levels are elevated, often
caused or exacerbated by uncontrolled diabetes mellitus, obesity, and sedentary
habits.http://emedicine.medscape.com/article/126568-overview (last visited January 20, 2015).
5

difficulty performing routine, repetitive tasks, interacting with coworkers, or receiving supervision
due to his current mental state. ([8] at 262-67).
On May 21, three weeks after the examination with Dr. Coulter in which he brought an nonprescribed cane, Plaintiff went to the VA hospital and requested a prescription for a cane. He was
given one. ([8] at 408).
On June 14, 2010, Plaintiff was examined by state agency medical consultant Dr. James
Griffin, who completed a Physical Residual Functional Capacity Assessment. Dr. Griffin assigned
Plaintiff a primary diagnosis of mild degenerative disc disease, and a secondary diagnosis of obesity.
Dr. Griffin opined that Plaintiff could frequently lift twenty-five pounds and occasionally lift and/or
carry fifty pounds. Dr. Griffin also opined that Plaintiff could stand, walk and sit for a total of about
six hours in an eight-hour workday. Dr. Griffin noted that Plaintiff had no manipulative, visual,
communicative or environmental limitations. ([8] at 268-75). However, Dr. Griffin found that
Plaintiff should be limited to only occasional kneeling or crouching due to his alleged pain. Dr.
Griffin noted that Dr. Coulter had previously found that Plaintiff needed a cane for balance and pain
purposes, but indicated that this finding was inconsistent with Dr. Coulter’s opinion that Plaintiff
could carry 50 pounds and occasionally and twenty pound frequently. ([8] at 268-75).
Between May 27, 2010 and June 17, 2010, Plaintiff received treatment three times at the VA
hospital, twice as a walk-in and once for a medication management appointment, in which he
encountered Dr. James Clayton Brister.7 At the first visit on May 27, Dr. Brister noted that Plaintiff

7

In addition to the three visits described infra, the record reflects that Dr. Brister was
made aware of advice given to Plaintiff by a VA nurse via telephone call. Dr. Brister was not
involved with the call, the record only shows that the “receipt was acknowledged” by Dr. Brister.
([8] at 656).
6

was seen as a walk-in, and that Plaintiff stated he was worried that his diabetes may be linked to
Risperidone, a medication that he was taking. Dr. Brister recommended discontinuing the
medication to observe if there was any symptom change. ([8] at 659-60). The June 14, 2010
encounter was another walk-in visit. The record is signed by Dr. Brister, and reflects that Plaintiff
was “doing well” and denied any psychotic symptoms, but gave a long history of his obsessivecompulsive symptoms and complained that a certain medicine was making him hungry. Dr. Brister
noted that Plaintiff was alert, very neat, goal oriented and suffered from no hallucinations or
delusions. He recommended a different medication in response to Plaintiff’s complaints. ([8] at 64445). The June 17, 2010 visit was for medication management. The record reflects that Dr. Brister
co-signed the record of Plaintiff’s visit with Dr. Maria A. Scarbrough, and thus it is unclear as to
who actually examined Plaintiff. The record lists the encounter time at ten minutes, and reflects that
Plaintiff was doing well on his medication, and was in a good mood and mentally alert. It also
reflects that Plaintiff did not report suicidal or homicidal thoughts nor auditory or visual
hallucinations. ([8] at 633-38).8
On June 20, 2010, Plaintiff was examined by state agency medical consultant Dr. David
Powers, who completed a Mental Residual Functional Capacity Assessment. Although Dr. Powers
opined that Plaintiff was moderately limited in his understanding, memory, concentration, social
interaction and adaption, he concluded: “There is nothing to suggest a severe mental problem of any
kind. . . .[T]hese limitations should be considered but, taken exclusively, would not prevent
competitive work on sustained basis. From the mental perspective, this claimant retains the ability

8

The record from this visit referenced two previous visits in which Plaintiff received
treatment from Dr. Brister.
7

to work.” ([8] at 290-93).
On July 14, 2010, Dr. Samuel Richardson conducted a Compensation and Pension
examination of Plaintiff’s spine at the VA hospital. Dr. Richardson reported that Plaintiff
complained of pain in his lumbar area, pointing to the L4-5 area. Dr. Richardson stated that Plaintiff
denied using bedrest for pain relief and does all activities of daily living, for the most part,
unassisted. Dr. Richardson noted that Plaintiff uses a cane, but that Plaintiff did not bring it to the
examination. He reported that the Plaintiff has flare-ups precipitated by stooping , and that Plaintiff
had subjective pain at the end of left and right lateral flexion of the thoracolumbar spine. Dr.
Richardson’s study of an x-ray taken January 5, 2010, revealed mild disc disease of L4-5 and L5-S1.
He was not able to estimate Plaintiff’s ability to function without undue speculation. ([8] at 311-12).
On the same day, Dr. Raymond Kimble conducted a mental health exam of the Plaintiff. Dr.
Kimble opined that Plaintiff had poor concentration, obsessive thoughts and poor social functioning
that would impair his work ability, but that the overall impairment is mild. Dr. Kimble opined that
Plaintiff suffered from panic disorder, and had a Global Assessment of Functioning (“GAF”) of 70.9
([8] at 308-09).
On October 19, 2010, Dr. Kimble conducted another mental health examination of the
Plaintiff, and found that depression, schizophrenia, obsessive compulsive disorder, and social phobia
could not be diagnosed. ([8] at 306).

9

The Global Assessment of Functioning assigns a clinical judgment in a numerical
fashion to an individual’s overall functioning level. Impairments in psychological, social and
occupational/school functioning are considered, but those related to physical or environmental
limitations are not. The scale ranged from zero to one hundred. See Global Assessment of
Functioning, Access Behavior Health, available at
https://www.omh.ny.gov/omhweb/childservice/mrt/global_assessment_functioning.pdf.
8

BURDEN OF PROOF
In Harrell v. Bowen, the Fifth Circuit detailed the shifting burden of proof that applies to
disability determinations:
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. Once the
claimant satisfies his initial burden, the [Commissioner] then bears the burden of
establishing that the claimant is capable of performing substantial gainful activity
and therefore, not disabled. In determining whether or not a claimant is capable of
performing substantial gainful activity, the [Commissioner] utilizes a five-step
sequential procedure set forth in 20 C.F.R. § 404.1520(b)-(f) (1988):
1. An individual who is working and engaging in substantial gainful
activity will not be found disabled regardless of the medical findings.
2. An individual who does not have a ‘severe impairment’ will not
be found to be disabled.
3. An individual who meets or equals a listed impairment in
Appendix 1 of the regulations will be considered disabled without
consideration of vocational factors.
4. If an individual is capable of performing the work he has done in
the past, a finding of ‘not disabled’ must be made.
5. If an individual’s impairment precludes him from performing his
past work, other factors including age, education, past work
experience, and residual functional capacity must be considered to
determine if other work can be performed.

862 F.2d 471, 475 (5th Cir. 1988). The claimant bears the burden at the first four steps, but the
burden thereafter shifts to the Commissioner at step five. Once the Commissioner makes the
requisite showing at step five, the burden shifts back to the claimant to rebut this finding. Perez v.
Barnhart, 415 F.3d 457, 461 (5th Cir. 2005). A finding that a 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 (citations omitted).
9

ADMINISTRATIVE LAW JUDGE’S ANALYSIS
As an initial matter, the ALJ found that Plaintiff met the insured status requirements of the
Social Security Act through March 31, 2010. At step one of the evaluation,10 the ALJ found that
Plaintiff had not engaged in substantial gainful employment since February 4, 2009, the alleged
onset date. At step two, the ALJ found that Plaintiff suffered from the following severe impairments:
obesity, lumbar disc disease, obstructive sleep apnea, depression, anxiety and obsessive-compulsive
disorder. ([8] at 33). At step three, the ALJ determined that Plaintiff does not have an impairment
or combination of impairments that meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. § 404, Part 4, Subpart P, Appendix 1. ([8] at 35). In order to make a
determination at step four, the ALJ assessed Plaintiff’s Residual Functional Capacity (“RFC”).11 The
ALJ found that:
the claimant has the residual functional capacity to perform light work
as defined in 20 C.F.R. 404.15679b) and 416.967(b)12 except he is limited to

10

The ALJ applied the evaluation process set forth in 20 C.F.R. §§ 404.1520(b)-(f) and
416.92(a).
11

“Residual Functional Capacity” is defined in the Regulations as the most an individual
can still do despite the physical and/or mental limitations that affect what the individual can do
in a work setting. 20 C.F.R. § 416.945.
12

Light work involves lifting no more than 20 pounds at a time with frequent lifting
or carrying of objects weighing up to 10 pounds. Even though the weight lifted
may be very little, a job is in this category when it requires a good deal of walking
or standing, or when it involves sitting most of the time with some pushing and
pulling of arm or leg controls. To be considered capable of performing a full or
wide range of light work, you must have the ability to do substantially all of these
activities. If someone can do light work, we determine that he or she can also do
sedentary work, unless there are additional limiting factors such as loss of fine
dexterity or inability to sit for long periods of time.
20 C.F.R. § 404.1567(b) and § 416.967(b).
10

occasional crouching, crawling, stooping, climbing, kneeling and balancing.
He should not be exposed to unprotected heights or hazardous machines. He
is limited to simple work instructions, simple work tasks, and simple job
decisions. He can interact casually with coworkers and the general public,
but interaction with the general public should not be a primary work task. He
can receive supervision that is not confrontational and he can adapt to work
routine, but changes in work routine must be gradual.
([8] at 37).
At step four, the ALJ found that Plaintiff is unable to perform any past relevant work as an
electrician/electrician’s helper (medium in exertion demand) or meat cutter (heavy in exertion
demand), because the exertion demands of his past work exceed his RFC. ([8] at 43). Finally at step
five, the ALJ concluded that Plaintiff could perform a significant number of jobs in the national
economy. The ALJ based this conclusion on Plaintiff’s age, educational background, work
experience and RFC, and the testimony from the VE. These jobs include small products assembler,
light courier and motel/hotel housekeeper. Accordingly, the ALJ found that Plaintiff was not
disabled. ([8] at 43-44).
APPEALS COUNCIL REVIEW
As outlined above, Plaintiff appealed the ALJ’s decision and submitted additional evidence
to the Appeals Council that was not before the ALJ.13 Specifically, Plaintiff submitted a Mental
Impairment Questionnaire (MIQ)14 dated April 7, 2011, from Dr. James C. Brister. ([8] at 10331038).
In the MIQ, Dr. Brister opined that Plaintiff suffers from major depression and exhibits

13

20 C.F.R. § 404.970(b) permits a claimant to submit new evidence to the Appeals

Council.
14

The document has the subtitle “Medical Source Statement and Listings.”
11

symptoms, inter alia, of poor memory, social withdrawal or isolation, and delusions/hallucinations.
Dr. Brister reported that Plaintiff had weekly panic attacks and suffered from chronic affective
disorder. Dr. Brister also opined that Plaintiff had marked restrictions of activities of daily living,
marked difficulties in maintaining social functioning, extreme deficiencies of concentration,
persistence or pace resulting in failure to complete tasks in a timely manner, and one or two episodes
of decompensation of extended duration.15 Finally, Dr. Brister reported that Plaintiff’s impairments
would likely caused the Plaintiff to be absent from work more than three times a month. ([8] at
1033-38). Plaintiff submitted the MIQ in an effort show that he met or equaled a listed impairment.
The Appeals Council first denied Plaintiff’s request for review on June 18, 2012. However,
on October 15, 2013, the Appeals Council set aside that action to consider the additional evidence
provided by the Plaintiff. ([8] at 5). Despite Plaintiff’s new evidence, the Appeals Council denied
Plaintiff’s request for review a second time. ([8] at 5). The Appeals Council stated,
In looking at your case, we considered the reasons you disagree with the decisions
and the additional evidence listed on the enclosed Order of Appeals Council.16 We
considered whether the Administrative Law Judge’s action, findings, or conclusion
is contrary to the weight of the evidence of the record. We found that this
information does not provide a basis for changing the Administrative Law Judge’s
decision.”
([8] at 6).
STANDARD OF REVIEW
This Court’s review of the Commissioner’s decision is limited to inquiry into whether there

15

This opinion is in reference to criteria of the mental impairments listings in 20 C.F.R.
§§ 404.1520 (a)(4)(iii) and 416.920(a)(4)(iii); see also 20 C.F.R. pt. 404, Subpart P, Appendix 1
§ 12.00.
16

The enclosed order referenced Dr. Brister’s MIQ. ([8] at 8).
12

is substantial evidence to support the Commissioner’s findings and whether the correct legal
standards were applied in evaluating the evidence. Hollis v. Bowen, 837 F.2d 1378, 1382 (5th Cir.
1988). Substantial evidence is “more than a scintilla, less than a preponderance, and is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Hames v. Heckler,
707 F.2d 162, 164 (5th Cir. 1983). To be substantial, the evidence “must do more than create a
suspicion of the existence of the fact to be established.” Id. at 164 (citations omitted). However,
“[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) (internal
citations and quotations omitted). Conflicts in the evidence are for the Commissioner, not the
courts, to resolve. Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). A court may not reweigh
the evidence, try the 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 decision is supported by substantial evidence, it is conclusive and must be
affirmed.

Selders, 914 F.2d at 617. Moreover, "‘[p]rocedural perfection in administrative

proceedings is not required’ as long as ‘the substantial rights of a party have not been affected.’"
Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007) (quoting Mays v. Bowen, 837 F.2d 1362, 1364
(5th Cir.1988)).
PLAINTIFF'S OBJECTIONS AND ANALYSIS
Plaintiff files three distinct objections to the Report and Recommendations of Judge Parker.
They will be addressed as set forth in Plaintiff's written Objections.
OBJECTION NO. I
Mr. Montgomery respectfully submits that the Magistrate improperly reweighed the

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evidence in determining that the Appeals Council properly considered Dr. Brister's mental
impairment questionnaire (MIQ) and applied an improper standard in failing to remand Mr.
Montgomery's case to the Appeals Council in light of same.
Plaintiff argues appropriately, that the Appeals Council will review a case if, in pertinent
part, "the actions, findings, are conclusions of the administrative law judge are not supported by
substantial evidence," or if the Appeals Council receives new and material evidence and the ALJ's
"action, findings, or conclusions is contrary to the weight of the evidence currently of record." 20
CFR 404.970, 20 CFR 416.1470 (14 pages 1 and 2). The thrust of Plaintiff's argument in this
objection is that a mental impairment questionnaire (MIQ) performed by Dr. Brister contradicted
the ALJ's findings (Step 3-5), rendering the Appeals Council's denial erroneous and contrary to law.
It is noted by this Court that Dr. Brister's MIQ makes substantial findings that are substantially in
conflict with the record. Dr. Brister is a staff psychiatrist at the Veteran's Administration Medical
Center (VAMC), who saw Mr. Montgomery briefly on three occasions prior to submitting the MIQ
nine months later. It is clear that Plaintiff had a history with the VAMC, seeing the staff every
month or two for four years. Dr. Brister's opinion was a five page opinion with check boxes and
little or no explanation. Findings are as follows: (1) major depression with poor memory; (2)
appetite disturbance with weight change; (3) perceptual disturbances; (4) sleep disturbance; (5)
mood disturbance; (6) social withdrawal and isolation; (7) emotional lability; (8) blunt, flat or
inappropriate affect; (9) delusions or hallucinations; (10) obsessions or compulsions; (11)
psychomotor agitation or retardation; (12) generalized persistent anxiety; (13) feelings of
guilt/worthlessness; (14) difficulty thinking or concentrating; and (15) suicidal ideation or attempt.
The doctor stated further that Mr. Montgomery was withdrawn and experienced panic attacks

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weekly and that he experienced marked restrictions in activities of daily living, marked difficulties
in maintaining social functioning, extreme deficiencies of concentration, persistence, or pace
resulting in a failure to complete tasks in a timely manner (in work setting or elsewhere), and one
or two episodes of decompensation. He further states that Plaintiff had a medically documented
chronic affective disorder lasting more than two (2) years which has caused more than a minimal
limitation in his ability to do basic work activities, with his symptoms or signs currently attenuated
by medication or psychosocial support. In effect, Dr. Brister stated that Plaintiff is a psychological
wreck with numerous findings in the MIQ and other report.
The task of Judge Parker was to determine whether or not the Appeals Council failed to
properly consider the additional evidence submitted to it by the Plaintiff after its original ruling. The
Appeals Council denied Plaintiff's request for review. Plaintiff claims that Dr. Brister's opinion is
uncontradicted and claims that it is the opinion of a treating physician and should be given
controlling weight. The Appeals Council is to evaluate the entire record in order to determine
whether the ALJ's decision is contrary to the weight of the evidence.
In considering what was before the Appeals Council the Defendant points out that the record
reflects that Plaintiff saw Dr. Brister on May 27, 2010, as a walk in patient (Doc. 8 at 659). Plaintiff
was concerned about the impact of his mental health medications on his diabetes (Doc. 8 at 659).
Plaintiff's mental status exam was normal (Doc. 8 at 659). Approximately two weeks later on June
14, 2010, Dr. Brister again saw Plaintiff as a walk in patient and at that time Plaintiff described
obsessive/compulsive symptoms, which Dr. Brister noted had been previously documented in
Plaintiff's medical record (Doc. 8 at 644). The mental status exam was normal (Doc. 8 at 645).
Finally, Dr. Brister may have seen Plaintiff for ten minutes on June 17, 2010 (Doc. 8 at 633-38).

15

Plaintiff was seen for medication management (Doc. 8 at 633). At that visit, Plaintiff reported good
mood, mental alertness, good energy and good sleep (Doc. 8 at 633). The record further notes that
there were no other negative findings but, indeed, the findings were positive. The Plaintiff argues
that Dr. Brister was with the VAMC and had access to four years of records to use in writing the
MIQ. However, the Plaintiff does not point the Court to places in the record that backup the
numerous maladies listed in that document.
In its task of reviewing the entire record, the Appeals Council looked at the circumstances
and the record as it existed and determined not to do any further review. Judge Parker found that
this was appropriate based on the record and this Court finds that the objection voiced by the
Plaintiff is not supported by the record and is without merit.
OBJECTION NO. II
Mr. Montgomery respectfully objects to the Magistrate's determination that the ALJ properly
assessed Mr. Montgomery's residual functional capacity Step 5.
Plaintiff disagrees with the residual foundational capacity (RFC), found by the ALJ. Judge
Parker founds substantial evidence supporting the ALJ's residual functional capacity finding. This
is not a medical assessment and the ALJ heard significant evidence regarding the Plaintiff's RFC.
The issue of the cane that Plaintiff claimed to use, but did not bring to the hearing and the failure
to substantially address the fact that Dr. Coulter concluded that Plaintiff could perform medium
work are significant factors. The ALJ had the benefit of the testimony, work record, and medical
records of the Plaintiff, as well as the expert testimony of the vocational specialist. The ALJ is the
fact finder and weighs this evidence. The record indicates that the ALJ properly considered the
evidence of record and the determination is supported by substantial evidence, as Judge Parker

16

found. This Court finds that this Objection by Plaintiff is not well taken.
OBJECTION NO. 3
Mr. Montgomery respectfully objects to the Magistrate's determination that the vocational
expert's testimony did not support a finding of disabled when posited hypothetical questions
properly incorporating all limitations supported by the medical evidence and opinions.
This Objection addresses the propriety of the ALJ's hypothetical questions and whether or
not they incorporated the limitations recognized by the ALJ. The hypothetical question incorporated
limitations consistent with the ALJ's RFC finding and he was subject to cross examination. The
Court concludes that Judge Parker's determination that the questioning of the RFC and disability
finding are supported by substantial evidence and this Court finds that the Objection is without
merit.
CONCLUSION
As required by 28 U.S.C. § 636(b)(1) this Court has conducted an independent review of the
entire record and a de novo review of the matters raised by the objections. For the reasons set forth
above, this Court concludes that Montgomery's objections lack merit and should be overruled. The
Court further concludes that the Report and Recommendation is an accurate statement of the facts
and the correct analysis of the law in all regards. Therefore, the Court accepts, approves and adopts
the Magistrate Judges’s factual findings and legal conclusions contained in the Report and
Recommendation.
Accordingly, it is ordered that the United States Magistrate Judge Michael T. Parker’s Report
and Recommendation is accepted pursuant to 28 U.S.C. § 636(b)(1) and that the Motion to Affirm
[10] the Commissioner's decision is granted and that the complaint is dismissed with prejudice

17

and the denial of benefits affirmed.
SO ORDERED this, the 31st day of March, 2015.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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