Barrett v. Colvin

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATION OF THE U. S. MAGISTRATE JUDGE. The decision of the Commissioner is affirmed and this Social Security action is dismissed with prejudice. Signed by Judge Ron Clark on 9/22/17. (mrp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
JAMES EDWARD BARRETT

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vs.
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION

CIVIL ACTION NO. 6:15cv568

ORDER ADOPTING REPORT AND
RECOMMENDATION OF THE UNITED
STATES MAGISTRATE JUDGE
The Report and Recommendation of the Magistrate Judge, which contains her findings,
conclusions, and recommendation for the disposition of this action, has been presented for
consideration. The Report and Recommendation (ECF 17) recommends that the decision of the
Commissioner be affirmed and that the complaint be dismissed with prejudice. Plaintiff filed a
written objection on July 20, 2017 and the Commissioner filed a response on August 3, 2017.
Plaintiff contends that the ALJ should have permitted him to subpoena or submit
interrogatories to a non-examining State agency physician who completed a Physical Residual
Functional Capacity Assessment. Due process concerns requiring such discovery and opportunity
for cross-examination, however, is only triggered in relation to examining physicians who submit
reports. See, e.g., Lidy v. Sullivan, 911 F.2d 1075, 1077 (5th Cir. 1990); Bayer v. Colvin, 557
Fed.Appx. 280, 286 (5th Cir. 2014). The physician at issue here, Dr. Rosenstock, reviewed the
medical records and completed an agency form. He did not examine Plaintiff or submit a report.
This claim of error lacks merit.

1

Plaintiff’s objections additionally assert a new argument that the non-examining State
agency physician’s opinion, standing alone, cannot be substantial evidence to support the ALJ’s
decision. In the case relied upon by Plaintiff, however, the ALJ failed to address or even mention
a treating physician’s opinion and instead assigned great weight to the opinions of the nonexamining medical experts.

See Kneeland v. Berryhill, 850 F.3d 749, 761 (5th Cir. 2017). In

contrast, the ALJ here considered and addressed each treating source and the consultative
examiner’s report. In addition, the ALJ expressly determined that the consultative examiner’s
opinion and the medical evidence in the record from Plaintiff’s treating physicians is consistent
with the non-examining physician’s opinion.1

The ALJ’s finding is supported by substantial

evidence.
Having made a de novo review of the objections filed by Plaintiff, the findings, conclusions
and recommendation of the Magistrate Judge are correct and Plaintiff’s objection is without merit.
It is therefore
ORDERED that the Plaintiff’s objections are OVERRULED and the Report and
Recommendation (ECF 17) is ADOPTED. The decision of the Commissioner is AFFIRMED
and this Social Security action is DISMISSED WITH PREJUDICE. It is further
ORDERED that any motion not previously ruled on is DENIED.

So ORDERED and SIGNED this 22 day of September, 2017.

___________________________________
Ron Clark, United States District Judge

1

See Administrative Record, ECF 8-2, at *23–24.
2