Opinion
Civil Action No: SA-02-CA-1126-XR
September 3, 2003
ORDER ACCEPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
On this date the Court considered the United States Magistrate Judge's Report and Recommendation (docket number 15) in the above numbered and styled cause, and the Plaintiff's Objections to the Report and Recommendation, After careful consideration, the Court will accept the Magistrate Judge's recommendation and affirm the Commissioner's denial of disability benefits.
Standard of Review
When a party objects to a Magistrate Judge's Report and Recommendation, the District Court conducts a de novo review. 28 U.S.C. § 636(b)(1).
Background
The Plaintiff filed an application for supplemental security income benefits on or about November 20, 1998. He alleged he was disabled as a result of a motor vehicle accident and that the disability began on February 1, 1984. In an accompanying disability report dated December 8, 1998, he alleged he was suffering from a disability due to "back problems, joints hurt, neck hurts . . . can't sit, stoop over." In a report dated January 18, 1999, the Plaintiff continued to complain about the same physical problems and specifically denied suffering from any "mental problems." After his claim was denied on March 31, 1999, he submitted a Request for Reconsideration and Reconsideration Disability Report on June 8, 1999. In that Reconsideration Disability Report, the Plaintiff again described back and neck pain, but also claimed that he was suffering from depression.
During the course of this November 1998 application, the Plaintiff was seen by Brett Bolte, M.D. for a consultative physical examination. On January 10, 2000, the Plaintiff was also seen by Donald Koester, M.D., who diagnosed the Plaintiff as suffering from depression and prescribed anti-depressant medications. The Plaintiff was subsequently seen on at least three different occasions by three other medical providers (Christopher Teague, M.D., John Shelton, M.D., and Robert Brown, M.D.).
Dr. Teague's medical records dated February 22, 2000, indicate that the Plaintiff declined counseling and was reacting positively to a new anti-depressant medication — Wellbutrin. Prior to the October 31, 2000 hearing, Dr. Brown's medical records reflected that the Plaintiffs depression was improving with medication. On October 31, 2000, an Administrative Law Judge (ALJ) held a hearing, and on February 8, 2001, the ALJ determined that the Plaintiff was not disabled.
On June 17, 2002, the Plaintiff filed a new application for SSI disability benefits. During the course of that second application, the Social Security Administration ("SSA") sent the Plaintiff to two medical providers. On September 25, 2002, the Plaintiff was seen by Jackson K. Walker, M.D. for a physical examination. Dr. Walker diagnosed the Plaintiff as suffering from (1) arthralgia in various joints, (2) lumbosacral strain and sprain with various limitations, and (3) depression with slurred speech from medication. On November 19, 2002, the Plaintiff was seen by a psychiatrist (Greg D. Blaisdell, M.D.). Dr. Blaisdell diagnosed the Plaintiff as suffering from a major depressive disorder., recurrent, with anxious and psychotic disorders. On or about January 5, 2003, the SSA granted the Plaintiff's June 17, 2002 application and awarded benefits retroactive to June 17, 2002.
On October 25, 2002, the Appeals Council denied the Plaintiffs request for review of the ALJ's February 8, 2001 determination, making the determination of the ALJ the final decision of the Commissioner with regard to the November 1998 application. On November 25, 2002, the Plaintiff filed his Original Complaint seeking judicial review of the SSA's denial of his November 20, 1998 application. 42 U.S.C. § 405(g). The Plaintiff alleged that: (1) the ALJ's decision was not supported by substantial evidence; (2) the ALJ failed to fully and fairly develop the record by failing to send the Plaintiff for a psychological consultative examination prior to the October 31, 2000 hearing and by failing to call a psychologist to testify as an expert; (3) the ALJ failed to make a combination analysis; and (4) the ALJ erred by not complying with recent revisions to the mental impairment regulations found at 65 Fed. Reg. 50745 (August 21, 2000). The Plaintiff sought a reversal of the SSA decision. In the alternative, the Plaintiff sought a remand so that the SSA could consider the medical reports dated September 25, 2002 and November 19, 2002.
This matter was referred to the United States Magistrate Judge, who submitted a Report and Recommendation on June 10, 2003. In her Report, the Magistrate Judge concluded that the ALJ's decision was supported by substantial evidence, that the ALJ fully and fairly developed the record, and that the Plaintiff's request for a remand to consider the additional medical reports should be denied.
On June 19, 2003, the Plaintiff timely filed his Objections to the Report and Recommendation. The Plaintiff raises two objections to the Magistrate Judge's Report. First, the Plaintiff complains that the Magistrate Judge erred in finding that the ALJ fully and fairly developed the record. Second, the Plaintiff complains that the Magistrate Judge erred by failing to find that the Plaintiff could not maintain employment for a significant period of time.
Analysis and Discussion
A. An ALJ's decision will be reversed only if the decision is not supported by substantial evidence.
An ALJ's decision will be reversed only if the decision is not supported by substantial evidence. Shave v. Apfel, 238 F.3d 592 (5th Cir. 2001). A review of the denial of disability benefits is limited to determining whether the decision is supported by substantial evidence in the record and whether the proper legal standards were used in evaluating the evidence. Bowling v. Shalala, 36 F.3d 431 (5th Cir. 1994). In applying the "substantial evidence" standard, a Court may not reweigh the evidence in the record, nor try the issues de novo, nor substitute the Court's judgment for the SSA's, even if the evidence preponderates against the SSA's decision. Id. at 434. This is so because "substantial evidence" is less than a preponderance but more than a scintilla. Id.
B. The ALJ fully and fairly developed the record and did not err by failing to send the Plaintiff for a psychological consultative examination prior to the October 31, 2000 hearing. Nor did the ALJ err by failing to call a psychologist to testify as an expert at the hearing.
A consultative examination at government expense maybe required if the record establishes that such an examination is necessary to enable the ALJ to make the disability decision. Haywood v. Sullivan, 888 F.2d 1463 (5th Cir. 1989). The decision to require such an examination is discretionary, but limited where the claimant "raises the requisite suspicion" that such an examination is necessary for the ALJ to discharge his duty of full inquiry. Id. at 1472.
In Haywood, the Fifth Circuit found that Haywood failed to raise the necessary suspicion. Although Haywood requested a psychological examination at the end of her hearing, to that point she had based her disability claim only on a "heart condition" and offered evidence focused on this claim. While evidence of Haywood's anxiety was recognized at the hearing, Haywood's testimony did not indicate necessity for psychological review, nor did any doctors on record at that time recommend such a review. Moreover, Haywood herself ultimately procured a psychological review and placed a report of the findings in the record. The ALJ explicitly considered these findings. Accordingly, the Fifth Circuit denied Haywood's motion to admit new evidence and refused remand for the consideration thereof.
The determination of whether to obtain a consultative examination is within the discretion of the ALJ. The regulations explain that a consultative examination may be obtained when the evidence as a whole is insufficient to support a disability determination. A consultative examination should be ordered when it is necessary to enable the ALJ to make a disability determination. In this case, the ALJ applied the psychiatric review technique found in 20 C.F.R. Part 404 and found that the Plaintiff had a depressive disorder. The ALJ, however, also found that the depressive disorder did not restrict the Plaintiff's daily activities, resulted in only "mild" social functioning difficulties, and "moderate difficulties in maintaining concentration, persistence, and pace, and . . . no episodes of decompensation."
Applying Haywood, this Court finds that the Plaintiff likewise fails to "raises the requisite suspicion" that a psychiatric consultative examination was necessary for the ALJ to discharge her duty of full inquiry. None of the doctors previously seen by the Plaintiff recommended such an examination, medical records discussing the Plaintiff's depression were placed in the record, and the ALJ explicitly considered these medical records.
Plaintiff relies upon Ripley v. Chater, 67 F.3d 552 (5th Cir. 1995), for his argument that the ALJ failed in her duty to develop the facts fully and fairly. In Ripley, the record included a vast amount of medical evidence establishing that Ripley had back problems. The record failed to establish what effect Ripley's condition had on his ability to work. This is not the situation in this case. The medical records reviewed by the ALJ noted in part that counseling was not recommended by any physician, and if such discussion took place, the Plaintiff refused any such suggestion. The Plaintiff reported "mentally he felt better" and the anti-depressant Wellbutrin was helping. No physician placed any significant work restrictions on the Plaintiff due to his depression, other than to state that he should not work in jobs that necessitate working as part of a team or interacting with the public.
Plaintiff's objection that the ALJ erred by failing to call a psychologist to testify as an expert at the hearing also fails. Plaintiff appears to argue that only a medical specialist, i.e. a psychologist or psychiatrist, could render an opinion as to severity of the Plaintiffs depression. 20 C.F.R. § 404.1616(c) provides, in part, that ". . . a physician will be a member of the team that makes a disability determination except in cases in which this function may be performed by a psychological consultant." This regulation expresses a general preference that physicians always serve as medical experts. It permits qualified non-physicians to serve as such, but only in the fields of their expertise. Nowhere does the regulation or jurisprudence exclude certain physicians or designate psychiatrists or psychologists as exclusive medical advisors when mental impairments must be evaluated. Thus, this regulation does not require that expert testimony regarding mental impairments must be proffered by either a psychiatrist or psychologist.
Newton v. Apfel, 209 F.3d 448 (5th Cir. 2000), relied upon by Plaintiff, does not address nor require that expert testimony regarding mental impairments be proffered only by a psychiatrist or psychologist.
C. Must an ALJ not only determine whether a claimant can obtain employment, but also whether the claimant can maintain employment for a significant period of time.
In Watson v. Barnhart, 288 F.3d 212 (5th Cir. 2002), the ALJ found that Watson had a severe degenerative disc disease, but was not disabled and had an exertional capacity for medium work. Watson argued that the ALJ erred in failing to make a determination that he could maintain employment. The Fifth Circuit agreed. However, this issue was revisited by the Fifth Circuit in Frank v. Barnhart, 326 F.3d 618 (5th Cir.), reh'g denied, 326 F.3d 618 (5th Cir. 2003). In Frank, the Fifth Circuit stated that "nothing in Watson suggests that the ALJ must make a specific finding regarding the claimant's ability to maintain employment in every case." Id. at 619. The Fifth Circuit further stated:
. . . Watson required the ALJ to make a finding as to the claimant's ability to maintain a job for a significant period of time, notwithstanding the exertional, as opposed to non-exertional (e.g., mental illness) nature of the claimant's alleged disability. Watson requires a situation in which, by its nature, the claimant's physical ailment waxes and wanes in its manifestation of disabling symptoms. For example, if Frank had alleged that her degenerative disc disease prevented her from maintaining employment because every number of weeks she lost movement in her legs, this would be relevant to the disability determination.
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At bottom, Watson holds that in order to support a finding of disability, the claimant's intermittently recurring symptoms must be of sufficient frequency or severity to prevent the claimant from holding a job for a significant period of time. An ALJ may explore this factual predicate in connection with the claimant's physical diagnosis as well as in the ability-to-work determination. Usually, the issue of whether the claimant can maintain employment for a significant period of time will be subsumed in the analysis regarding the claimant's ability to obtain employment. Nevertheless, an occasion may arise, as in Watson, where the medical impairment, and the symptoms thereof, is of such a nature that separate consideration of whether the claimant is capable of maintaining employment is required. Frank did not establish the factual predicate required by Watson to necessitate a separate finding in this regard.Id. at 619-20. The Plaintiff herein presented no evidence, and does not argue in his Objections to the Report and Recommendation of the Magistrate Judge, that he suffers from "intermittently recurring symptoms" or that either his physical or mental ailments "wax and wane" in their "manifestation of disabling symptoms." Moreover, as noted by the Magistrate Judge, the ALJ cited federal regulations that evaluated the Plaintiff's ability to work on a regular and continuing basis. Accordingly, Watson does not apply to the facts of this case. In the alternative, the ALJ conducted any analysis required by Watson, Singletary v. Bowen, 798 F.2d 818 (5th Cir. 1986) and Wingo v. Bowen, 852 F.2d 827 (5th Cir. 1988).
D. A review of the remainder of the Magistrate Judge's Report and Recommendation finds its reasoning sound and neither clearly erroneous nor contrary to law.
Other than the two objections addressed above, no party made any further objections to the Magistrate Judge's Report and Recommendation. Accordingly, the Court need not conduct a de novo review of the remaining issues addressed in the Report and Recommendation. See 28 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings and recommendations to which objection is made."). The Court has reviewed the remaining portions of the Report and Recommendation and finds its reasoning to be neither erroneous nor contrary to law. United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert denied, 492 U.S. 918(1989).
Conclusion
It is Ordered that the Report and Recommendation of the Magistrate Judge (docket no. 15) is ACCEPTED pursuant to 28 U.S.C. § 636(b)(1), that Plaintiff's Objections to the Report and Recommendation (docket no. 17) are DENIED, and the Commissioner's decision is AFFIRMED. The ALJ's report is supported by substantial evidence and correctly applies the relevant legal standards. Any pending motions are DENIED as moot.