Oliver v. Colvin
ORDER ADOPTING REPORT AND RECOMMENDATIONS for 12 Report and Recommendations. Signed by Judge Rodney Gilstrap on 03/29/2016. (nkl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SOCIAL SECURITY ADMINISTRATION
CIVIL ACTION NO. 2:14cv01016
ORDER ADOPTING REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
The Report and Recommendation of the Magistrate Judge, which contains his findings,
conclusions, and recommendation for the disposition of this action, has been presented for
consideration. The Report and Recommendation recommends that the decision of the Commissioner
be affirmed and the complaint be dismissed. Plaintiff has filed written objections. See Docket Entry
# 13 (Plaintiff’s Objections).
Having made a de novo review of the objections filed by Plaintiff, the Court finds that the
findings, conclusions and recommendation of the Magistrate Judge are correct. Plaintiff contends,
in the objections, that the ALJ committed legal error in finding that Plaintiff had no severe
impairment, that the ALJ improperly evaluated the medical opinion evidence, and that the ALJ
failed to conduct a proper credibility assessment. See Plaintiff’s Objections to the Report and
Recommendation at 6.
The Finding of No Severe Impairment
Plaintiff argues that she suffers from disabling physical conditions which prevent her from
working, and that it was error for the ALJ not to assess her impairments to be severe. See Objections
to the PSR at 1-2. Plaintiff argues that the ALJ did not apply the proper legal standard from Stone
v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985), when determining that Plaintiff’s alleged
impairments were not severe at Step Two See Tr. at 18-22; see also Pl.’s Br. at 1, 5-20; Stone, 752
F.2d at 1101 (an impairment can be considered as not severe only if medical evidence establishes
it is a slight abnormality having such a minimal effect on the individual that it would not be expected
to interfere with the individual’s ability to work). In Stone, the Fifth Circuit instructed that an ALJ
should verify that he or she properly considered the severity of an impairment by either setting forth
the Stone standard or citing to Stone or a similar case. See Stone, 752 F.2d at 1106.
The ALJ complied here by specifically citing Social Security Ruling (SSR) 85-28, which
refers to Stone and the “Fifth Circuit’s construction of Agency severity regulations” that Plaintiff
emphasizes. See Tr. at 18; see also Pl.’s Br. at 7; SSR 85-28, 1985 WL 56856, at *2. Based on the
Fifth Circuit’s decision in Taylor v. Astrue, 706 F.3d 600, 603 (5th Cir. 2012), any error in not
following the procedures set out in Stone is harmless. In Taylor, the Court emphasized that
substantial evidence supported the ALJ’s Step-Two determination. Taylor, 706 F.3d at 603.
Similarly, substantial evidence supports the ALJ’s Step Two decision here. See Tr. at 19-23.
Even if Plaintiff’s alleged impairments could be considered ”severe” for sake of argument,
Plaintiff has not established harmful error. The evidence shows that Plaintiff’s alleged medical issues
did not affect her ability to perform basic work functions. The Fifth Circuit has found error under
these circumstances to be harmless. See e.g., Taylor v. Astrue, 480 Fed. Appx. 302,304 (5th Cir.
2012) (not following Stone was harmless because the evidence showed the claimant’s mental
impairment was not severe); Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007) (court “must still
determine whether this error was harmless.”).
The ALJ’s Evaluation of the Medical Opinion Evidence
Plaintiff contends that the ALJ erred in its evaluation of the medical opinion evidence. See
Objections at 5. Plaintiff argues that “In the absence of reference to some contrary medical opinion
with respect to Ms. Oliver’s exertional and non-exertional abilities, the ALJ’s rejection of the
opinion of the Agency’s reviewing physicians is an improper substitution of his own lay judgment
for the opinion of the medical experts”. See Objections at 5.
The Magistrate Judge’s Report fully and correctly addresses the issue of the ALJ’s
evaluation of the medical opinion evidence in the case. The ALJ–as the fact finder-- has the sole
responsibility for determining what weight to give the proffered medical evidence. See Muse v.
Sullivan, 925 F.2d 785, 790 (5th Cir. 1991). The court may not reweigh the evidence in the record,
try the issues de novo, or substitute its judgment for that of the ALJ, even if the evidence
preponderates against the ALJ’s decision. See Luckey v. Astrue, 458 F. App’x 322, 326 (5th Cir.
Because the ALJ did not adopt the non-examining state agency physicians’ opinions, Plaintiff
contends that the ALJ did not properly weigh the opinion evidence. See Tr. at 22, 61-82, 190, 209,
278-285, 290; see also Pl.’s Br. at 1, 4-19. The relevant ruling and regulations, however, explain
that the ALJ was not bound by the non-examining physicians’ findings. See 20 C.F.R. §§
404.1527(e)(2)(i), 416.927(e)(2)(i); SSR 96-6p at *2. Instead, the ALJ the properly considered “the
evidentiary record as a whole,” and properly based her decision on the evidence from treating and
examining, rather than non-examining, physicians. See Tr. at 17, 19-23; see also 20 C.F.R. §§
404.1527(c), 416.927(c) (treating and examining physicians’ opinions may deserve more weight that
the opinions of physicians who have not examined a claimant). Plaintiff’s reliance on the nonbinding, non-examining physicians’ opinions to show “harmful, dispositive error” is misplaced. See
Tr. at 22, 61-82, 190, 278-285, 209, 290. See Pl.’s Br. at 1, 4-19.
Plaintiff’s argument that the ALJ improperly made medical findings is belied by the fact that
the ALJ is entitled to determine the credibility of medical experts and weigh their opinions
accordingly. See Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985). In addition, the Fifth Circuit
has noted “it is the task of the ALJ to resolve conflicts in the evidence.” See Lovelace v. Bowen, 813
F.2d 55, 59 (5th Cir. 1987); see also Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002)
(conflicts in evidence are for the Commissioner and not the courts to decide). This Court will not
re-weigh the medical evidence. See Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999) (“[W]e may
not reweigh the evidence in the record, nor try the issues de novo, nor substitute our judgment for
that of the [Commissioner], even if the evidence preponderates against the [Commissioner’s]
decision.”). Thus, substantial evidence supports the ALJ’s decision.
Further, contrary to Plaintiff’s allegation, the ALJ properly weighed all the medical opinions,
consistent with regulatory requirements. Substantial evidence supports the ALJ’s decision to give
no significant weight to the non-examining physicians opinions. The ALJ properly discounted these
opinions because the non-examining physicians failed to support them with objective medical
evidence and it was inconsistent with the record evidence. See Perez v. Barnhart, 415 F.3d 457,
466 (5th Cir. 2005); 20 C.F.R. §§ 404.1527(c)(3), (c)(4), 416.927(c)(3), (c)(4). The opinions by the
non-examining physicians were rejected because it was contradicted by the other medical evidence
in the record, as well as Plaintiff’s own testimony about her activities.
The Credibility Determination
Plaintiff contends in the objections that the ALJ and the Report of the Magistrate Judge
incorrectly determined there was no error in the assessment of Plaintiff’s credibility. See Objections
at 6. The Magistrate Judge’s Report fully addresses the issue of credibility. As the Magistrate
Judge pointed out, the ALJ did not entirely reject Plaintiff’s allegations. See Tr. at 6; see also SSR
96-7p, 1996 WL 374186, at *4 (the adjudicator need not totally accept or totally reject the claimant’s
statements). Considering Plaintiff’s subjective reports together with the medical findings from the
adjudicated period, the Magistrate Judge properly found that the ALJ correctly determined that
Plaintiff’s statements concerning the intensity, persistence, and limiting effects of her symptoms
were not entirely credible. See Tr. at 22.
To assess Plaintiff’s credibility, the ALJ properly considered the medical evidence,
application documents, and testimony at the hearing in accordance with the relevant regulations and
ruling See Tr. at 19-23; see also 20 C.F.R. §§ 404.1529, 416.929; SSR 96-7p, 1996 WL 374186.
The ALJ specifically stated that she “considered all symptoms and the extent to which these
symptoms can reasonably be accepted as consistent with the objective medical evidence and other
evidence, based on the requirements of 20 CFR 404.1529 and 416.929 and SSRs 96-4p and 6-7p”.
See Tr. at 21. The ALJ discussed reasons for discounting Plaintiff’s credibility, and substantial
evidence supports her findings. See Tr. at 19-23.
Therefore, Plaintiff’s objections are without merit and will be overruled. There is substantial
evidence in the record supporting the Commissioner’s decision. The findings and conclusions of
the Magistrate Judge are therefore adopted as those of the Court.
In light of the foregoing, it is
ORDERED that Plaintiff’s objections are hereby OVERRULED. It is further
ORDERED that the decision of the Commissioner is AFFIRMED and the complaint is
hereby DISMISSED WITH PREJUDICE. It is further
ORDERED that any motion not previously ruled on is DENIED.
So Ordered this
Mar 29, 2016
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