Moore v. Commissioner of Social Security

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE for 17 Report and Recommendation. The court has conducted a de novo review of the objections in relation to the pleadings and applicable law. After careful consideration, the court concludes the plaintiff's objections are without merit and are, therefore, overruled. It is, therefore, ORDERED that the decision of the Administrative Law Judge is AFFIRMED. Signed by Judge Ron Clark on 3/11/2014. (kls, )

**NOT FOR PRINTED PUBLICATION**
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
HOWARD MOORE,
Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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CASE NO. 4:12-CV-657

ORDER ADOPTING REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
On January 10, 2014, the United States Magistrate Judge issued his report and
recommendation [Doc. #17], this matter having been referred to the United States Magistrate
Judge pursuant to 28 U.S.C. § 636. The Magistrate Judge recommended that the
Commissioner’s decision denying Plaintiff’s claim for disability insurance benefits be affirmed.
On January 24, 2014, Plaintiff filed his objections [Doc. #18].
Plaintiff first objects to the finding of the Magistrate Judge that the administrative law
judge (“ALJ”) did not commit error when he failed to re-contact Plaintiff’s treating physician for
an analysis of Plaintiff’s functional limitations. “The Fifth Circuit requires remand for failure to
re-contact a treating physician only when (1) the physician’s records are inconclusive or
otherwise inadequate to receive controlling weight, (2) the record contains no other medical
opinion evidence based on personal examination or treatment, and (3) the claimant proves
prejudice.” Paul v. Barnhart, 417 F. Supp. 2d 837, 841 (E.D. Tex. 2006) (citing Newton v.
Apfel, 209 F.3d 448, 453 (5th Cir. 2000)). In examining the first prong, the Magistrate Judge
concluded that the treating physician’s records were not inconclusive or otherwise inadequate to
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receive controlling weight. The ALJ did not accord the treating physician’s records controlling
weight and stated:
[T]he claimant has not produced any treating source opinion or examining source
opinion addressing the medically determinable impairments and the functional
limitations or abilities that those medically determinable impairments would be
expected to produce for the period of time that [h]e seeks benefits. Thus, there is
no medical opinion from a treating source physician that can be weighed by the
undersigned.
TR 28. Plaintiff contends that because the ALJ did not give the treating physician’s records
controlling weight, then the physician’s records were “otherwise inadequate to receive
controlling weight” as a matter of law. However, the ALJ did use the medical records of the
treating physician in support of his residual functional capacity finding, especially as he found
those records to be consistent with the functional limitations assessed by the other examining and
non-examining sources.

Simply because the ALJ determined that the treating physician’s

records should not receive controlling weight does not establish as a matter of law that the
treating physician’s records were inadequate. Further, the ALJ noted that he could not give the
medical opinion of a treating physician controlling weight because there was no opinion to be
weighed. See Newton, 209 F.3d at 458. The ALJ gave significant weight to other opinions of
non-examining physicians that reviewed the entire record, including the findings of the treating
physician. The ALJ’s residual functional capacity decision is supported by substantial evidence,
and Plaintiff failed to demonstrate that the treating physician’s records were inconclusive or
otherwise inadequate to receive controlling weight. Thus, Plaintiff cannot meet the first prong,
and remand is not required.
Further, Plaintiff must also show that he suffered prejudice. The Magistrate Judge found
that “the record contains physical and mental consultative examinations for Plaintiff,” and other
reports and opinions that support the ALJ’s decision [Doc. #17 at 11]. “Prejudice can be
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established by showing that additional evidence would have been produced if the ALJ had fully
developed the record, and that the additional evidence might have led to a different decision.”
Ripley v. Chater, 67 F.3d 552, 557 n.22 (5th Cir. 1995); Paul, 417 F. Supp. 2d at 841. The court
finds that the plaintiff cannot demonstrate that the additional evidence might have led to a
different decision. The treating physician found bilateral ankle edema on one occasion [TR
225]; however, the treating physician also found no edema on several occasions [TR 182, 189,
200]. The treating physician determined that Plaintiff had normal reflexes, coordination, muscle
strength and tone, and intact sensation [TR 189, 200, 204, 210]. The treating physician also
noted that Plaintiff reported that he walked for forty-five minutes a day, five times a week [TR
199, 203, 224, 284]. Plaintiff has not demonstrated that the treating physician’s diagnosis of
ankle edema would contradict the residual functional capacity finding of the ALJ, or that the
requested function-by-function analysis might lead to a different result. Plaintiff’s objection is
overruled.
Plaintiff also objects to the Magistrate Judge’s conclusion that the ALJ’s credibility
finding was supported by substantial evidence. Plaintiff contends that the Magistrate Judge
failed to consider his post-hoc rationalization argument. Specifically, the Commissioner asserted
that the ALJ did not err in failing to consider that Plaintiff reported that his wife cooks most of
his meals, and that this argument was improper post-hoc rationalization. However, Plaintiff fails
to recognize that the Magistrate Judge concluded that the ALJ’s credibility determination was
supported by substantial evidence. The ALJ considered the fact that Plaintiff did not stop
working due to disability, rather, Plaintiff was laid off [TR 27; Doc. #17 at 12]. The ALJ also
considered Plaintiff’s self-reported daily activities such as cooking, washing clothes, shopping
for short periods of time, taking his dog for walks, and driving [TR 25, 27, Doc. #17 at 13]. The

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only alleged error is that the ALJ and Magistrate Judge did not properly consider Plaintiff’s
contention that his wife did most of the cooking. However, other substantial evidence supports
the ALJ’s decision, and the Magistrate Judge properly considered the evidence in the record.
Plaintiff’s objection is overruled.
Plaintiff also objects to the finding of the Magistrate Judge that the ALJ did not err at
Step 5 of the sequential evaluation process. Plaintiff contends that the ALJ failed to ask the
vocational expert a complete hypothetical question taking into account all of Plaintiff’s
limitations. However, the Magistrate Judge fully considered Plaintiff’s argument and found that
the ALJ’s hypothetical question to the vocational expert included all of Plaintiff’s restrictions
that the ALJ found the record supported. The ALJ need only incorporate into the hypothetical
question those claimed disabilities supported by the evidence and recognized by the ALJ, and the
hypothetical question in this case met those requirements. Plaintiff’s objection is overruled.
The court has conducted a de novo review of the objections in relation to the pleadings
and applicable law. After careful consideration, the court concludes the plaintiff’s objections are
without merit and are, therefore, overruled.
It is, therefore, ORDERED that the decision of the Administrative Law Judge is
AFFIRMED.
So ORDERED and SIGNED this 11 day of March, 2014.

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Ron Clark, United States District Judge

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