Kiehn v. Commissioner of SSA
Filing
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ORDER ADOPTING REPORT AND RECOMMENDATIONS for 14 Report and Recommendations. Signed by Judge Michael H. Schneider on 7/1/14. (bas, )
IN THE UNITED STATES DISTRICT COURT
OF THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
JASON ROBERT KIEHN
§
VS.
§
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION
§
CIVIL ACTION NO. 5:12cv129
MEMORANDUM ORDER
The above-entitled and numbered civil action was heretofore referred to United States
Magistrate Judge Caroline M. Craven pursuant to 28 U.S.C. § 636. The Report of the magistrate
judge which contains her proposed findings of fact and recommendations for the disposition of such
action has been presented for consideration. Plaintiff filed objections to the Report and
Recommendation. Defendant filed a response to the objections. The Court conducted a de novo
review of the magistrate judge’s findings and conclusions.
Plaintiff objects to the magistrate judge’s recommendation that Plaintiff’s above-entitled and
numbered social security cause of action be affirmed. First, Plaintiff addresses the opinions of state
agency examining personnel, Drs. Cox and Ferguson, asserting the problem with relying on these
opinions is Plaintiff is bipolar and experiences repeated episodes of decompensation. According to
Plaintiff, he experiences manic periods and becomes very optimistic; however, he then cycles and
becomes paranoid, depressed, and suicidal. Plaintiff further asserts he suffers from severe mood
swings, rage attacks, severe behavioral difficulties, and oppositional defiant disorder with rage.
Second, Plaintiff references the opinion of Barry Bullard, Ph.D., a clinical psychologist, who treated
Plaintiff during the relevant period and completed a mental impairment evaluation form on
December 21, 2011 (Tr. 260-79, 280-88). According to Plaintiff, Dr. Bullard’s records show Plaintiff
consistently has trouble with focus and concentration. Plaintiff states he is able to get a job; however,
he cannot keep a job because he cannot follow instructions, and he is consistently paranoid about his
co-workers and employers. Finally, Plaintiff asserts a vocational expert should have been present
at the hearing to address Plaintiff’s mental impairments and properly assess Plaintiff’s residual
functional capacity.
Plaintiff asserts treating physician Dr. Bullard’s opinions conflict with the opinions of the
state agency medical experts. The magistrate judge determined “the ALJ properly discounted Dr.
Bullard’s opinion because it was not supported by or consistent with the objective medical evidence,
including Dr. Bullard’s treatment notes during the relevant period.” Report and Recommendation
at pg. 31. An ALJ should generally give considerable weight to the opinion of a treating physician
who is familiar with a claimant’s medical condition. Perez v. Barnhart, 415 F.3d 457, 465-66 (5th
Cir. 2005). An ALJ may give a treating physician’s opinion controlling weight if it is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with . . . other substantial evidence.” Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000)
(internal quotation marks omitted). However, simply identifying a treating physician as the source
of a medical opinion will not automatically entitle that opinion to considerable or controlling weight
because the ALJ is free to assign little or no weight to the opinion of any physician for good cause.
Id. at 455-56. Good cause for assigning little to no weight to such an opinion arises where statements
are brief and conclusory, not supported by medically acceptable clinical laboratory diagnostic
techniques, or otherwise unsupported by the evidence. Perez, 415 F.3d at 466; Newton, 209 F.3d at
456. A treating physician’s opinion is not conclusive, Perez, 415 F.3d at 466, and an ALJ may reject
it when the evidence supports a contrary conclusion. Martinez v. Chater, 64 F.3d 172, 176 (5th Cir.
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1995).
In her May 28, 2014 Report and Recommendation, the magistrate judge discussed all of the
relevant medical evidence, including the evidence from Dr. Bullard. As the magistrate judge
summarized, the evidence shows Plaintiff’s mental impairments were stable; he had successfully
worked during the relevant period; and Dr. Bullard did not suggest that Plaintiff would be unable to
work an 8-hour workday on a regular basis. See Report and Recommendation at pgs. 31-32. The
Court finds the magistrate judge properly determined the ALJ had good cause to discount Dr.
Bullard’s opinion and to credit the state agency medical experts’ opinions.
Regarding Plaintiff’s assertion that the ALJ should have had a vocational expert testify at
the administrative hearing, the Court notes that when a claimant has non-exertional limitations that
make the Medical-Vocational Guidelines (“Grids”) inapplicable, the Commissioner must rely upon
the services of a vocational expert or similar evidence. Carey v. Apfel, 230 F.3d 131, 145 (5th Cir.
2000). However, when a claimant’s non-exertional impairments do not significantly affect his
residual functional capacity, the ALJ may rely exclusively on the Grids in determining whether there
is other work available that the claimant can perform. Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir.
1990). The mere presence of a non-exertional impairment, as in this case, does not preclude use of
the Grids. Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987).
A claimant’s inability to meet any of several basic mental work-related activities will
substantially erode the unskilled occupational base. Social Security Ruling (SSR) 96-9p, 1996 WL
374185, at *9. Conversely, when a claimant has the ability to perform all of the basic mental workrelated activities, the unskilled occupational base is not eroded. Id. The mental activities generally
required for competitive, remunerative, unskilled work are:
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1. Understanding, remembering, and carrying out simple instructions;
2. Making judgments that are commensurate with the functions of unskilled work,
i.e., simple work-related decisions;
3. Responding appropriately to supervision, co-workers and usual work situations;
and
4. Dealing with changes in a routine work setting.
Id. Thus, if a claimant has the ability to perform the above basic mental work-related activities,
claimant’s non-exertional impairment does not erode the unskilled occupational base, and it is
appropriate for an ALJ to use the Grids as a framework in determining whether the claimant is
disabled. See Selders, 914 F.2d at 618 and SSR 96-9p, 1996 WL 374185.
Here, the ALJ determined that Plaintiff retained the ability to perform all of the basic mental
work activities despite his mental impairments (Tr. 26). Plaintiff demonstrated his ability to perform
all of these basic mental work activities by holding a job at Crossmark for 18 months, leaving
voluntarily, and immediately beginning a job at Bed Bath & Beyond (Tr. 260, 320-21). Because the
ALJ properly discounted Dr. Bullard’s opinion and properly found that Plaintiff retained the ability
to perform all of the basic mental work activities, the ALJ properly relied on the Grids to determine
that Plaintiff was not disabled (Tr. 26). See Report and Recommendation at pgs. 33-35.
After reviewing the transcript, the briefs of the parties, and the Report and Recommendation,
the Court finds Plaintiff’s objections are without merit. The Court agrees with the magistrate judge
that the ALJ correctly applied the applicable legal standards and that substantial evidence supports
the ALJ’s determination that Plaintiff is not disabled. The Court is of the opinion that the findings
and conclusions of the magistrate judge are correct. Therefore, the Court hereby adopts the Report
of the United States Magistrate Judge as the findings and conclusions of this Court. Accordingly,
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it is hereby
ORDERED that the above-entitled Social Security action is AFFIRMED.
It is SO ORDERED.
SIGNED this 1st day of July, 2014.
____________________________________
MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE
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