Conwell v. Commissioner of Social Security

Filing 15

MEMORANDUM OPINION and ORDER re 11 Findings and Recommendations. The magistrate judge found that plaintiff's contentions as to the first two issues presented in plaintiff's brief are without merit. The court adopts the magistrate judge& #039;s findings and conclusions as to those issues. However, the court is not adopting the magistrate judge's findings and conclusions as to the issue that caused the magistrate judge to recommend that Commissioner's decision be reversed an d remanded.... The court has concluded that the Commissioner's denial of benefits should be affirmed, and that plaintiff's complaint should be dismissed. (See opinion for specifics) (Ordered by Judge John McBryde on 4/18/2011) (npk) (Main Document 15 replaced on 4/19/2011) (dld).

"
U.S. DISTRlCT COCRT
.' NORTHERNDISTRICTOFTEXAS

IN THE UNITED STATES DISTRIC
NORTHERN DISTRICT OF TE
FORT WORTH DIVISION

:COURT

s .

FILED

[~ ~~
__

§

Plaintiff,

CLERK, U.S.D1S1idCTCOURT
.By _ _-;::---:-_ __

§

CHRISTEL E. CONWELL,

Depilty

§
§

VS.

§

NO. 4:09-CV-656-A

§

MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,

§
§
§
§

Defendant.

§

MEMORANDUM OPINION
and
ORDER
By order signed March 30, 2011, the court ordered the
parties to provide additional briefing on a subject to which the
court did not consider that the parties had directed their
attention in filings made while the above-captioned action was
pending before the magistrate judge on referral for findings,
conclusions, and recommendation.

The parties have now filed

their supplemental briefing.
Defendant, Michael J. Astrue, Commissioner of Social
Security,

("Commissioner") maintains in his brief that there was

substantial evidence in the record to support the residual
functional capacity ("RFC") finding of the administrative law
judge ("ALJ") that played a role in the ALJ's conclusion that the

claim of plaintiff

l

Christel E. Conwell 1 for disability benefits

under Title II of the Social Security Act ("Act")1 42 U.S.C.
§

423(d) (1) (A)

1

should be denied. 1

Commissioner requests that

this court affirm his decision denying benefits and dismiss
plaintiff's complaint.
Plaintiff's supplemental brief seems to make two points.
First

l

she says that she discussed the subject of the court's

concern in the brief she filed when the case was before the
magistrate judge and

l

second

that this court has no authority to

l

review the magistrate judge's proposed findings

1

conclusions

1

and

recommendation ("FC&R") because no objection was made by either
party to any part of the FC&R.
The court first directs its attention to the second point
made by plaintiff in her supplemental brief.
§

636 (b) (1) (C); Thomas v. Arn

l

474 U. S. 140

1

lS0-S3 (198S); and

1

Douglass v. United Services Automobile Ass'n
29 (Sth Cir. 1996)

She cites 28 U.S.C.

l

79 F.3d 141S 1 1428-

as authority for her contention that this

court should not conduct a de novo review of the FC&R.
has misread those authorities.

Plaintiff

To whatever extent they have

relevance to the proposition for which they were cited

l

IThe decision of the ALJ became the final decision of the Commissioner. Tr. at 1.

2

those

authorities stand for the rule that neither party to a Social
Security action such as this has a right to complain of a
finding, conclusion, or recommendation of the magistrate judge
unless, and only to the extent, the party has objected to the
findings, conclusions, and recommendation.
Section 636(b) (1) does provide, when considered in context
with applicable case law, that the district judge is obligated to
make a de novo review of only those portions of a magistrate
judge's findings, conclusions, and recommendation to which an
objection is made.

However, that does not imply that when no

objection is filed the district judge is not authorized to make a
de novo review.

In pertinent part,

§

636(b) (1) states that" [a]

judge of the court may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge."

Plaintiff overlooked in Thomas the statement that "while

the statute does not require the judge to review an issue de novo
if no objections are filed,

it does not preclude further review

by the district judge, sua sponte . . . , under a de novo or any
other standard."

474 U.S. at 154.

Not only does the district

judge have the authority to cause a correct judgment to be made,
he has the responsibility to make an informed, final

3

determination.

In Mathews v. Weber, the Supreme Court explained:

The magistrate may do no more than propose a
recommendation, and neither § 636(b) nor the General
Order gives such recommendation presumptive weight.
The district judge is free to follow it or wholly to
ignore it, or, if he is not satisfied, he may conduct
the review in whole or in part anew. The authority-and the responsibility--to make an informed, final
determination, we emphasize, remains with the judge.
423 U.S.

261,

270-71

(1976).

Therefore, the court has conducted a de novo review of the
magistrate judge's findings, conclusions, and recommendation.
The magistrate judge found that plaintiff's contentions as to the
first two issues presented in plaintiff's brief are without
merit. 2

The court adopts the magistrate judge's findings and

conclusions as to those issues.
However, the court is not adopting the magistrate judge's
findings and conclusions as to the issue that caused the
magistrate judge to recommend that Commissioner's decision be
reversed and remanded, i.e., whether the ALJ's RFC finding is

As defined by the magistrate judge in the FC&R, the first two issues were:

2

1. Whether the ALJ applied the correct legal standard in weighing the treating source
opinion.
2. Whether the ALJ improperly evaluated Conwell's credibility.
FC&Rat4.
4

support by substantial evidence.

While the ALJ's explanation of

his reasons for reaching the RFC conclusion that led to his
denial decision perhaps is not perfect, the court is satisfied
that it is legally sufficient and that it is supported by
substantial evidence in the record.
The RFC conclusion of the ALJ that is at issue was as
follows:
In consideration of combined adverse effects of all the
impairments (20 CFR 404.1523 & 404.1545 and SSR 96-8p),
I have concluded that claimant has the exertional
capacity for the sustained performance (SSR 96-8p) of a
full range of sedentary work duties, the least
strenuous of the several work activity levels.
Tr. at 15 (footnote omitted).

The definition of "full range of

sedentary work activity" was correctly noted by the ALJ as
follows:
Workers capable of a full range of sedentary work
activity must be able to lift/carry objects that weigh
a maximum of ten pounds and to occasionally lift/carry
small articles such as docket files, ledgers, or small
tools, and, while the worker must occasionally be on
her feet during the workday, she usually sits for six
of the eight hours in workday.
20 CFR 404.1567 and
SSRs 96-9p & 83-10.
Tr. at 15 n.8.
Included in the record were two professional Physical
Residual Functional Capacity Assessments, the first made in June
5

2007, Tr. at 140-47, and'the second in September 2007, Tr. at
173.

The June 2007 assessment resulted in a finding that

plaintiff had an RFC greater than the one the ALJ attributed to
her.

The professional concluded that plaintiff could

occasionally lift a maximum of twenty pounds (in contrast with
the ALJ's maximum of ten pounds); that she could frequently lift
and/or carry ten pounds (in contract with the ALJ's finding of
"occasionally lift/carry small articles such as docket files,
ledgers, or small tools"); that she could stand and/or walk a
total of about six hours in an eight-hour workday (in contrast
with the ALJ's "occasionally be on her feet during the workday"
finding); and, that she could sit about six hours in an eighthour workday (which is consistent with a limitation found by the
ALJ).

Tr. at 141.

The June 2007 assessment found that no

postural, manipulative, visual, communicative, or environmental
limitations were established.

Tr. at 142-44.

In September 2007,

the June 2007 assessment was affirmed by a different professional
after a review of all the evidence in the file and the RFC.

Tr.

at 173.
Thus, there was evidence in the record that would have
supported a conclusion by the ALJ that plaintiff had a greater
exertional capacity for sustained performance than the ALJ found.
6

The ALJ considered those assessments, but chose, on the basis of
the overall record, not to give them full effect.

Tr. at 14.

When discussing the factors he considered in assessing
impairment severity and secondary functional limitations, the ALJ
provided the following explanation:
When assessing impairment severity and secondary
functional limitations, I evaluated claimant's
testimony and other statements regarding daily
activities, restrictions, and symptoms, but I
considered several factors and they are not
controlling.
In addition to the testimony and
objective medical facts/opinions, I considered other
relevant factors, including but not limited to (1)
claimant's daily activitiesi (2) the location,
duration, frequency and intensity of her subjective
complaintsi (3) precipitating and aggravating factorsi
(4) the type, dosage, effectiveness and side-effects of
medicationi (5) the prescribed treatment regimeni and
(6) any other palliative measures she may use.
20 CFR
404[.]1529 and SSR 96-7p.
Tr. at 13.
At the outset of his evaluation, the ALJ took into account
plaintiff's impairments, which he found to be severe and to have
existed throughout the critical time periodi and, he noted that
those impairments were capable of producing the type of
subjective complaints plaintiff expressed.

Tr. at 12.

He then

evaluated the intensity, persistence, and adverse effects of the
subjective symptomology as he determined plaintiff's RFC and
work-related functional limitations.
7

Id.

The ALJ considered plaintiff's own testimony, including her
statements that she could sit for two to three hours, but would
move around and stand or change postures, could not stand very
long, and had to rest after walking a couple of blocks, Tr. at
13, her description of her exertional and activity limitations,
id., as well as her description of the activities in which she
said she had been engaged, such as doing dishes, some household
chores, shopping, and driving, id.

Of some significance to the

ALJ was plaintiff's testimony that she took general care of her
home and her eight-year-old daughter and had been a Bible study
volunteer, engaging in study sessions that last about one-half
hour, and had been for several years.

Id.

The side-effects of

medication taken by plaintiff were discussed, and considered, by
the ALJ.

Id.

As he was expected to do, the ALJ considered the absence of
evidence of certain kinds, explaining that "neither the objective
medical evidence nor reasonable inference nor any other nonmedical evidence establishes that claimant's post-onset ability
to function is so severely impaired as to preclude the
performance of all work "activities."

Id.

While the ALJ did not accept certain findings and
conclusions of Dr. Boulden, he took into account the medical
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records of all physicians in reaching his RFC conclusion.
Certain of the information contained in those records lent
support to the ALJ's RFC conclusion.

Tr. at 14.

The ALJ noted

negative exam results from a clinical examination performed by
Dr. Sharp in March 2005, and the absence of positive examination
results at that time.

rd.

More generally, the ALJ made mention

that while the records show that plaintiff has alternating
periods of feeling better and flare-ups, the "notes lack clear,
explicit objective observations and findings necessary to support
the proposed limitations and restrictions.

II

Tr. at 14-15.

The ALJ summed up significant omissions from the records by
saying:
There are no indicia of intractable pain, such as
unexplained weight change, disuse muscle atrophy or
guarding, blood pressure spikes or spells of rapid
breathing or tachycardia, or premature aging and
claimant did not undertake any lifestyle adaptations or
home environment alterations to accommodate the
impairment-driven restrictions she describes in the
critical period.
Claimant has relied on conservative
care, with no formal physical therapy or narcoticanalgesic pain medication, and, despite the
impairments, she engages in a fairly wide range of
household chores and daily activities.
Tr. at 15.
Considering all the evidence in the record upon which the
ALJ acted, the court cannot conclude that there is not

9

substantial evidence to support the ALJ's RFC conclusion.

Nor

can the court conclude that the ALJ was unable to reach his RFC
conclusion without impermissibly relying on his own medical
opinions.

There was ample evidence in the record to permit the

ALJ legitimately to conclude, as he did, that plaintiff had the
exertional capacity for sustained performance of a full range of
sedentary work duties.
The only remaining issue to be considered is the third issue
presented by plaintiff in the brief she filed with the magistrate
judge, i.e., " [w]hether the ALJ erred in applying the medicalvocational guidelines at Step Five instead of relying on the
testimony of the vocational expert."

FC&R at 4.

The magistrate

judge did not make any findings or conclusions as to such issue
because he had already determined that the action should be
reversed and remanded.

After reviewing the arguments made by the

parties on that issue, the court finds that the ALJ did not err.
When a claimant seeking disability benefits under the Act
suffers from only exertional impairments, or, if non-exertional
impairments do not significantly affect the claimant's RFC, the
ALJ may rely exclusively on the medical-vocational guidelines
("guidelines") in Appendix 2 of Subpart P of the Social Security
regulations to determine, at the Fifth Step of the sequential
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evaluation process, whether there are jobs in the national
economy that the claimant can perform considering the claimant's
RFC, age, education, and past work experience.
Sullivan, 914 F.2d 614, 618 (5th Cir. 1990)

Selders v.

(per curiam)

v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987).

i

Fraga

Otherwise, the

ALJ must rely on upon testimony by a vocational expert to
establish that such jobs exist.

Fraga, 810 F.2d at 1304.

Plaintiff argues that the ALJ should have relied on the
testimony of the vocational expert rather than follow the
guidelines because she suffers from "numerous non-exertional
limitations."

Pl. 's Br. at 17-18.

However, the ALJ found that

plaintiff had the RFC to perform a full range of sedentary work
duties, undiminished by any non-exertional limitations.

As

discussed above, such an RFC finding was supported by substantial
evidence.

Thus, the ALJ was entitled to use the guidelines,

rather than a vocational expert, to determine whether jobs exists
that plaintiff can perform.
For the reasons stated above, the court has concluded that
the Commissioner's denial of benefits should be affirmed, and

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that plaintiff's complaint should be dismissed.
THE COURT SO ORDERS.
SIGNED April

t ~,

2011.

District

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