Bryant v. Astrue
Filing
20
ORDER denying 10 Motion to Remand; granting 13 Motion to Affirm; adopting Report and Recommendations re 17 Report and Recommendations. Signed by Honorable David C. Bramlette, III on 9/19/2012 (PL)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
MARY L. BRYANT
PLAINTIFF
VERSUS
CIVIL ACTION NO. 5:11CV71-DCB-RHW
MICHAEL J. ASTRUE,
Commissioner of SSA
DEFENDANT
ORDER ADOPTING REPORT AND RECOMMENDATION
This
cause
is
before
the
Court
on
the
Report
and
Recommendation of the Magistrate Judge [docket entry no. 17] to
deny Plaintiff Mary L. Bryant’s Motion to Reverse, or in the
alternative, to Remand [docket entry no. 10] and grant Defendant’s
Motion to Affirm [docket entry no. 13]. Having carefully considered
the
Parties’
Motions,
their
opposition
thereto,
applicable
statutory and case law, and being otherwise fully advised in the
premises, the Court finds and orders as follows:
I. Plaintiff’s Objections to the Report and Recommendation
In his Report and Recommendation (R & R), Magistrate Judge
Walker concluded that substantial evidence supports the decision of
the Administrative Law Judge (ALJ) that Plaintiff was not disabled
and possessed the residual functional capacity (RFC) to perform
past relevant work. Plaintiff objects to this finding on three
separate grounds. First, she argues that the Magistrate Judge
should have found that the ALJ’s step-three determination was
deficient and contrary to law. Next, she argues that the Magistrate
Judge should have concluded that the ALJ erred in assessing her
RFC, which required the ALJ to reject the opinion of her treating
psychiatrist. Finally, she maintains that the Magistrate Judge
should have determined that the ALJ improperly found that she was
capable of returning to past work. The Court, mindful of the
substantial evidence standard of review as articulated in the R &
R, will address each of these objections in turn.
II. Analysis
1. The ALJ’s step-three determination was neither deficient
nor contrary to law
Reviewing the ALJ’s step-three determination, the Magistrate
Judge found that substantial evidence supports the ALJ’s finding
that Plaintiff does not have a mental impairment that meets or
equals one of the listings in appendix 1 to subpart P of § 404. R
& R at 4-6, docket entry no. 17. Plaintiff lodges a number of
specific objections to this finding, but each objection can be
traced to a fundamental source: she believes that the opinion of
her
treating
psychiatrist,
Dr.
Arora,
supports
a
contrary
conclusion and should have been given controlling weight. Dr. Arora
completed two nearly identical Mental Impairment Questionnaires
(MIQ), one in 2007 and another in 2009, which document that
Plaintiff has marked difficulties in maintaining social functioning
and
moderate
restrictions
in
activities
of
daily
living
and
concentration, persistence, or pace.1 Tr. 397-402.
1
Dr. Arora’s second MIQ essentially states that Plaintiff’s
mental impairments have not improved over the past two years and
2
As
an
initial
matter,
the
Court
notes
the
inconsistent
positions Plaintiff has taken with regard to what finding Dr.
Arora’s opinion supports. At first, Plaintiff conceded that the
MIQs
“[do]
not
support
a
finding
that
Ms.
Bryant’s
mental
impairments met Listings 12.04 and/or 12.06” but argued that “it
certainly raises the question regarding medical equivalency.” Pl.’s
Brief at 10, docket entry no. 11 (emphasis added). She also raised
the issue of whether Dr. Arora’s opinion supports a finding that
her impairments met medical listing 12.07 (somatoform disorder).
Id. at 10-11. Now, she appears to maintain that Dr. Arora’s opinion
supports a finding that her mental impairments meet listings 12.04
and 12.06 but does not reassert her contention that her impairments
meet listing 12.07.2 Pl.’s Written Objections at 4, docket entry
no. 18. Plaintiff’s only consistent argument with respect to step
three is that the ALJ should have found, based on Dr. Arora’s MIQs,
that she has impairment that equals an applicable medical listing
or at the very least should have obtained an expert opinion on the
issue of medical equivalency. See R & R at 6; Pl.’s Written
confirms the 2007 diagnosis.
2
Plaintiff argues that 12.04A and 12.06A are clearly
satisfied and implies that Dr. Dunn’s opinion supports a finding
that 12.04B and 12.06B are also met. See Pl.s’ Written Objections
at 3-5. Inasmuch as Plaintiff is now advancing the argument that
her impairments meet listings 12.04 and 12.06, the Court agrees
with her former position. Dr. Arora’s opinion does not support a
finding that Plaintiff can satisfy part B of either listing and
neither does Dr. Dunn’s opinion, no matter how favorably it is
construed in the Plaintiff’s favor. See Tr. at 17.
3
Objections at 8.
As explained in the R & R, there are at least two problems
with the equivalency argument. First, Plaintiff has failed to show
how Dr. Arora’s MIQs, or the other evidence for that matter,
support a finding of medical equivalency, that is, she has not
demonstrated how her mental impairments equal any of the medical
listings. R & R at 5; see Pl.’s Written Objections at 8 (recounting
the findings in the medical opinions but failing to explain how
these findings demonstrate an equivalent impairment). Relatedly,
Plaintiff does not specify how an updated medical opinion would
have altered the medical consultant’s finding that her impairments
do not meet or equal a listed impairment. See R & R at 6; Pl.’s
Written Objections at 7. An additional opinion is necessary only
when the ALJ believes that additional medical evidence may change
the state agency consultant’s initial finding. SRR 96-6p, 61 Fed.
Reg. 34,466, 1996 WL 374180. Such an opinion was not necessary in
this case, as Plaintiff cannot point to any additional evidence
that would have altered the ALJ’s conclusion.
Second, contrary to the Plaintiff’s contention, the ALJ did
consider and reject many of Dr. Arora’s findings contained in the
MIQs. See R & R at 10. But even if the ALJ had not afforded Dr.
Arora’s opinion little weight, it would not amount to error at step
three because Dr. Arora’s MIQs do not demonstrate that Bryant has
impairments that meet or equal one of the listings. The Court need
4
not rehash the evidence, which was carefully considered by the
Magistrate Judge, but highlights the fact that the opinions of Dr.
Arora
and
satisfies
conclusion
Dr.
part
was
Dunn
B
of
do
not
the
underscored
support
a
applicable
by
Dr.
finding
listings
Scates’s
that
and
Plaintiff
the
report
ALJ’s
and
the
Plaintiff’s testimony. See R & R at 7. For these reasons, the Court
agrees with the Magistrate Judge that substantial evidence supports
that ALJ’s determination that Plaintiff does not have an impairment
or a combination of impairments that meets or equals one of the
listings in appendix 1 to subpart P of § 404, and therefore, denies
Plaintiff’s objections on this issue.
2. The ALJ did not err in assessing Plaintiff’s RFC
Related to the above issue is the question of whether the ALJ
improperly calculated Plaintiff’s RFC. The Magistrate Judge found
that substantial evidence supported the ALJ’s RFC assessment and,
to the extent that Plaintiff invoked the treating physician rule,
the ALJ did not err in affording little weight to Dr. Arora’s
opinion regarding Plaintiff’s mental limitations. R & R at 8-10.
Plaintiff objects to both of these findings. First, she claims that
there is no medical opinion to support the ALJ’s RFC assessment,
particularly with respect to the findings regarding Plaintiff’s
physical limitations. Pl.’s Written Objections at 18. Next, she
maintains
that
the
findings
of
the
other
medical
health
professionals are compatible with Dr. Arora’s mental assessment,
5
which she argues should be given controlling weight. Id. at 13.
Both claims lack merit. The law dictates that the ALJ has the
responsibility to assess the claimant’s RFC, see 20 C.F.R. §§
404.1546(c), 416.946(c), and a medical source statement is not
necessary to the ALJ’s RFC determination as long as the RFC
determination is supported by substantial evidence. See Gutierrez
v. Barnhart, 2005 WL 1994289, at *7 (5th Cir. 2005); see also 20
C.F.R. §§ 404.1513(b), 416.913(b), 404.1527, 416.927, 404.1545,
416.945.
Although
Plaintiff
disputes
the
sufficiency
of
the
evidence to support the ALJ’s physical RFC determination, as noted
in the R & R, the ALJ discussed the issue of her neck and back pain
and,
with
a
sound
basis
in
the
record,
explained
why
the
persistence and limiting effects of her symptoms were not credible.
R & R at 8. To cite just one example, the medical consultant review
by Dr. James Glen indicated that Plaintiff had “no functional loss
due to pain.” R & R at 8. If anything, considering all the evidence
with regard to Plaintiff’s physical limitations, the ALJ chose to
give Plaintiff the benefit of the doubt in his assessment of her
physical limitations.3
3
Plaintiff contends that the ALJ’s RFC determination is
inconsistent with the his step-two finding that she had “severe
pain throughout her lumber spine.” Pl.’s Written Objections at 9.
But Plaintiff misconstrues the ALJ’s findings. The ALJ did not find
that the Plaintiff had “severe pain” but rather found that she had
a severe impairment: pain throughout her lumbar spine. Tr. at 18.
In other words, at step two the ALJ employed the technical meaning
of the term “severe”, see Tr. at 15, but the effect of Plaintiff’s
pain vis-a-vis her work limitations was yet to be determined.
6
Furthermore, with respect to Plaintiff’s mental impairments,
the ALJ properly explained why he afforded Dr. Arora’s opinion
little weight. See Newton v. Apfel, 209 F.3d 448, 455 (5th Cir.
2005); 20 C.F.R. 404.1527(d)(2) (listing the criteria for weighing
the treating source’s opinion). The ALJ considered the short length
of time Dr. Arora treated Plaintiff before completing the 2007 MIQ
and noted the inconsistencies between Dr. Arora’s treatment records
and her updated 2009 MIQ. Tr. at 19. He also set out in some detail
how
Dr.
Arora’s
conclusions
regarding
Plaintiff’s
mental
limitations were contradicted by the opinions of other mental
health professionals and Plaintiff’s testimony. See R & R at 10.
For these reasons, the ALJ chose to give more weight to the
findings of Dr. Dunn, the consultive examiner, and Dr. Scates, the
state
agency
consultant
psychologist,
who
concluded
that
Plaintiff’s symptoms were less severe than indicated by Dr. Arora’s
MIQ.4 Tr. at 19; R & R at 11. In sum, the Court agrees with the
Plaintiff’s RFC did account for her physical impairment by limiting
her to medium work, with some limitations. The ALJ’s findings at
step two and step four are not inconsistent. See Tr. at 18 (“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 these symptoms are not credible to the extent they are
inconsistent with the above [RFC] assessment.”).
4
Plaintiff questions why the ALJ placed no restrictions on
her interaction with co-workers and supervisors consistent with Dr.
Dunn’s opinion. Pl.’s Written Objections at 13. As stated in the R
& R, the ALJ did account for Dr. Dunn’s assessment regarding her
social limitations, ruling out work requiring detailed instruction
or frequent interaction with the public. See R & R at 11.
7
Magistrate Judge that substantial evidence supports Plaintiff’s RFC
with respect to both his mental and physical findings and therefore
the Court will deny Plaintiff’s objections on this issue.
3. The ALJ properly found that Plaintiff was capable of
returning to past work
Finally, Plaintiff objects to the ALJ’s conclusion that she
was capable of returning to past relevant work–a conclusion which
the Magistrate Judge found was supported by substantial evidence.
Two of the three objections to this conclusion are grounded, once
again, in Plaintiff’s belief that the ALJ did not properly account
for
Dr.
Arora’s
mental
assessment
and
the
opinion
of
the
nonexamining and consulting psychologists to the extent that those
opinions are compatible with Dr. Arora’s. Because the Court has
already
determined
that
Plaintiff’s
RFC
was
supported
by
substantial evidence, it finds no error in the ALJ presenting a
hypothetical to the vocational expert based on the RFC. Plaintiff’s
unaddressed objection is whether the ALJ erred by presenting a
hypothetical which she believes was at odds with her RFC. See
Bowling v. Shalala, 36 F.3d 431, 435-36 (5th Cir. 1994) (stating
that
a
hypothetical
is
defective
if
it
does
not
reasonably
incorporate the plaintiff’s disabilities). In his hypothetical to
the vocational expert, the ALJ stated that Plaintiff could “stand
or walk for 6 hours during an 8 hour period” when he had previously
found that Plaintiff could “stand/walk for 4-6 hours in an eight
hour day.”
8
The Court agrees with the Magistrate Judge that the difference
between the ALJ’s RFC determination and the hypothetical presented
the vocational expert is semantical. See R & R at 12. There is no
material difference between the Plaintiff’s RFC and the ALJ’s
hypothetical. Simply put, the ALJ found that Plaintiff could stand
for six (6) hours in an eight-hour (8) day, and the hypothetical
presented to the vocational expert reflected that finding. It would
have
been
wrong,
for
instance,
for
the
ALJ
to
present
a
hypothetical wherein Plaintiff could stand for seven (7) hours in
an
eight-hour
(8)
day
because,
according
to
the
ALJ’s
RFC
assessment, Plaintiff would not be able to perform the work. But
any hypothetical failing with the range determined by the ALJ does
not constitute error.
III. Conclusion
Finding no merit to Plaintiff’s objections, the Report and
Recommendation [docket entry no. 17] is HEREBY ADOPTED IN FULL.
Accordingly, IT IS FURTHER HEREBY ORDERED that Plaintiff’s Motion
to Reverse, or in the alternative, Motion to Remand [docket entry
no.
10]
is
DENIED.
IT
IS
FURTHER
HEREBY
ORDERED
that
the
Defendant’s Motion to Affirm the Decision of the Commissioner of
the
Social
Security
Administration
[docket
entry
no.
13]
is
GRANTED. Pursuant to Federal Rule of Civil Procedure 58, a separate
final judgement dismissing Plaintiff’s claims with prejudice shall
issue forthwith.
9
So ORDERED, this the 19th day of September, 2012.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
10
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