Opinion
CIVIL NO. SA-04-CA-0527-FB.
August 12, 2005
ORDER ACCEPTING MEMORANDUM AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
The Court has considered plaintiff Karen Morris-Johnson's action for judicial review of the decision of the Commissioner of the Social Security Administration that denied plaintiff's application for Supplemental Security Income benefits. The Court has reviewed the pertinent pleadings as well as the entire record. The Court has also reviewed and considered the Memorandum and Recommendation of United States Magistrate Judge Nancy Stein Nowak (docket #15) and plaintiff's objections thereto (docket #17).
In the Memorandum and Recommendation, Magistrate Judge Nowak concluded that substantial evidence supported the ALJ's report and the relevant legal standards were correctly applied. Accordingly, the recommendation is made that the decision of the Commissioner denying plaintiff's application for Supplemental Security Income benefits be affirmed.
As set out in the Memorandum and Recommendation, this Court is limited to a determination of whether the decision is supported by substantial evidence and whether the Commissioner applied the proper legal standards in evaluating the evidence. Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995). Substantial evidence is more than a scintilla, less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). In applying the substantial evidence standard, the Court's job is to "scrutinize the record to determine whether such evidence is present." Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994). The Court is not to reweigh the evidence, "try the issues de novo, or substitute [its] judgment for that of the Secretary." Id. However despite this Court's limited function, the Fifth Circuit has explained that "it is imperative that we scrutinize the record in its entirety to determine the reasonableness of the decision reached by the Secretary and whether substantial evidence exists to support it." Randall v. Sullivan, 956 F.2d 105, 109 (5th Cir. 1992); see Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000) (stating that inquiry as to an ALJ finding is "whether the record, read as a whole, yields such evidence as would allow a reasonable mind to accept the conclusions reached by the ALJ").
In her objections, plaintiff contends the Magistrate Judge erred in her consideration of the propriety of the ALJ assigning greater weight to the opinions of non-examining medical doctors than to the opinion of the examining psychiatrist for a psychiatric impairment. Plaintiff asks the Court to reconsider the identical arguments contained at pages 7 through 9 of Plaintiff's Brief (docket # 12) which Magistrate Judge Nowak rejected at pages 11 through 13 of her Memorandum and Recommendation. Some courts have found objections, such as the ones presented by the plaintiff herein, are general objections, and the effect of a general objection is the same as a failure to object. Aldrich v. Bock, 327 F. Supp. 2d 743, 747-48 (E.D. Mi 2004); see Betancourt v. Ace Ins. Co., 313 F. Supp. 2d 32, 34-35 (D.P.R. 2004) (objections presented "are not to be construed as a second opportunity to present the arguments already considered by the Magistrate Judge"; failure to comply with the procedural requirements concerning objections should result in the court not considering the objections and "could review de novo the Report and Recommendation without the benefit of any new argument of substance"). In support of this assertion, the court in Aldrich explained:
The filing of timely objections requires the court to "make a de novo determination of those portions of the report or specified findings or recommendations to which objections is made." This de novo review, in turn, requires this court to re-examine all the relevant evidence previously reviewed by the magistrate to determine whether the recommendation should be accepted, rejected, or modified in whole or in part. The court may "receive further evidence" if desired.
A general objection, or one that merely restates the arguments previously presented is not sufficient to alert the court to alleged errors on the part of the magistrate judge. An "objection" that does nothing more than state a disagreement with a magistrate's suggested resolution, or simply summarizes what has been presented before, is not an "objection" as that term is used in this context. A party who files timely objections to a magistrate's report in order to preserve the right to appeal must be mindful of the purpose of such objections: to provide the district court "with the opportunity to consider the specific contentions of the parties and to correct any errors immediately." The Supreme Court upheld this rule in Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985), a habeas corpus case. The Supreme Court noted that "[t]he filing of objections to a magistrate's report enables the district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute."
Further, "[o]nly those specific objections to the magistrate's report made to the district court will be preserved for appellate review; making some objections but failing to raise others will not preserve all the objections a party may have.
A general objection to the magistrate's report has the same effect as a failure to object. The district court's attention is not focused on any specific issues for review, thereby making the initial reference to the magistrate useless. The functions of the district court are effectively duplicated as both the magistrate and the district court perform identical tasks. The duplication of time and effort wastes judicial resources rather than saving them, and runs contrary to the purposes of the Magistrates Act.Aldrich, 327 F. Supp. 2d at 747-48 (citations omitted); see Betancourt, 313 F. Supp. 2d at 34-35 (court found objections to be "exact duplicate" of opposition to a motion to compel; plaintiff may not "simply restate the arguments that the Magistrate Judge considered and expect the Court to treat the filing seriously"; because plaintiff failed to comply with procedural requirements concerning his objections, the "Court should not even consider Plaintiff's objections, and could review de novo the Report and Recommendation without the benefit of any new argument of substance"); Memorandum and Recommendation of the United States Magistrate Judge, docket #15 at page 14 (Magistrate Nowak advised the parties herein that "the District Court need not consider frivolous, conclusive or general objections") (emphasis added). Although the Court will review plaintiff's objections, plaintiff's counsel is cautioned against future filings of the same nature.
With respect to the objections, plaintiff alleges the fact the ALJ did not assign substantial weight to the examining psychiatrist is error on its face. As set forth in the Memorandum, plaintiff's contention is the ALJ improperly deferred to the findings of State Agency Medical Consultant Dr. Mehdl Shairfien and Dr. Stephen Hoffman in lieu of the opinions of examining psychiatrist Dr. Hostetter. With respect to plaintiff's allegation of disabling depression the ALJ's decision reflects, in part, as follows:
The claimant is not currently under the care of a psychiatrist or a psychologist. She has not required inpatient treatment or emergency department treatment for depression at any time since the alleged onset date. Instead, she has more recently received medication therapy for this complaint from Dr. Brewer, a family care and pain management specialist. The claimant reports that she has been prescribed the medication Elavil to assist with sleep since 2001. Robin E. Hostetter, M.D., a psychiatrist examined the claimant on May 14, 2002 and diagnosed her with major depressive disorder, recurrent, with psychotic features, manifested by visual hallucinations with marked paranoia, depression, anhedonia, sleep disturbance, demonstrated trouble with memory, and reported trouble with concentration, negative thinking and history of suicide attempts. It was noted that the claimant reported spending a little time in jail for drug charges and admitted to occasional heavy drinking. She admitted past use of marijuana, cocaine, and heroin. A mental status examination showed that the claimant presented as distant, frightened, paranoid, anxious, edgy, and dysphoric. She misidentified one item and forgot a second item entirely on five minutes recall. The claimant had difficulty performing serial seven subtractions. However, her immediate and remote memory was intact. She was oriented and her stream of mental activity showed no looseness of associations or tangentiality. Her sensorium was clear. The claimant was able to spell her name backwards. She carried a cane, but Dr. Hostetter opined that it appeared that the claimant was using this as a potential defensive weapon rather than to support her weight while ambulating. It appears that Dr. Brewer prescribed anti-depressant medication Paxil to the claimant in late March 2003.
The Administrative Law Judge notes that, having reviewed the reports of Dr. Hostetter and Dr. Hoffman, M. Sharifian, M.D., a State agency medical consultant opined that the claimant was not significantly limited by her depression apart from having a moderate degree of limitation on her ability to: understand, remember, and carry out detailed instructions; maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; be aware of normal hazards and take appropriate precautions; travel in unfamiliar places or use public transportation; and, set realistic goals or make plans independently of others. Dr. Sharifian further commented that the claimant retains the ability to understand and follow simple instructions, adequately interact with co-workers and supervisors, and adapt to changes in a work environment.Transcript at page 15 (citations to exhibits omitted). Based in part on this analysis, the ALJ found plaintiff's has "the medically determinable `severe' impairments of: low back pain with mild degenerative disc disease L5-S-1 and depression."Transcript at page 16. With respect to the severity of plaintiff's depression, the ALJ continued:
The claimant testified that [she] attends church, has a boyfriend, goes to the movies, shops for groceries, does some house cleaning, does laundry, and reads. She reports a history of conflict with her co-workers but no such conflicts with managers. Dr. Hostetter noted that the claimant reported that she bathes daily, picks out her own clothing, does some cooking, tries to do some house cleaning and laundry by herself, sometimes does dishes by herself, and drives a car. She further reported watching television and listening to the radio, attending church, and playing video games. The claimant also reported to Dr. Hostetter that she has two or three friends, talks on the phone, and sometimes visits others. Dr. Hostetter's May 14, 2002 mental status examination showed the claimant to have some modest difficulty with memory and concentration. Interestingly, the claimant's memory was characterized as adequate and her attention span and concentration were said to be normal during Dr. Hoffman's February 26, 2002 neurological examination. The claimant has never been hospitalized for psychiatric reasons and does not appear to have made verified suicidal gestures since the alleged onset date. Therefore, the Administrative Law Judge finds that the claimant experiences the following "B" criteria limitations under section 12.04: "mild" restriction of activities of daily living; "moderate" difficulties in maintaining social functioning; "moderate" difficulties in maintaining concentration, persistence, or pace; and, "none" under episodes of decompensation, each of extended duration. The "C" criteria of section 12.04 are not met.Transcript at page 16. The ALJ's next determination was whether plaintiff retained the residual functional capacity to perform the requirements of her past relevant work or other work. In addition to finding that the record as a whole did not support a conclusion the plaintiff is "disabled from all work activity" and her "subjective allegations are not entirely credible," the ALJ made the following comments concerning plaintiff's depression:
The Administrative Law Judge also notes that the claimant's allegedly disabling pain and depression do not preclude her from performing an essentially normal range of daily activities, including driving a car, or from listening to the radio, watching television, socializing with friends, talking on the phone, attending church, and having a boyfriend with whom she goes to the movies.Transcript at page 17. Moreover, the ALJ stated he:
"considered Dr. Hostetter's GAF score of 35/40 which, according to the Diagnostic and Statistical Manual of Mental Disorders — Fourth Edition (DSM-IV), indicates some impairment in reality testing or communication (for example, speech is illogical, obscure, or irrelevant) or that the claimant has a major impairment in several areas, such as work or school, family relations, judgment, thinking or mood. However, the Administrative Law Judge did not accord any substantial weight to Dr. Hostetter's GAF score or other opinions because they are inconsistent with the clinical findings of Dr. Hoffman, the opinions of the State agency medical consultant discussed above, the claimant's activities of daily living, and the claimant's relative lack of specialized or intensive care for this complaint. Transcript at page 17 (citations to exhibits omitted). The ALJ then found plaintiff "cannot perform work involving frequent interactions with other employees (i.e. close proximity to others). The claimant cannot perform working involving complex job instructions ( 20 CFR 416.967)." Transcript at pages 16-17. The ALJ then explained:
The foregoing conclusions account for the effects of the claimant's impairments consistent with the clinical findings, her treatment history, and the opinions of Dr. Hoffman and Dr. Sharifian. The Administrative Law Judge did not accord any significant weight to Dr. Hostetter's opinions for the reasons discussed above. All other treating and examining medical source opinions were accorded weight to the extent they are consistent with the rationale and findings herein. The Administrative Law Judge also considered the opinions of the State agency medical consultants in accordance with Social Security Ruling 96-60. However, based on a different interpretation of the evidence available to the State agency medical consultants, the Administrative Law Judge concluded that the claimant's physical condition is somewhat more limited, albeit not disabling, than was previously determined.Transcript at page 18 (citations to exhibits omitted).
Although the Court agrees with plaintiff's assertion that the opinion of an examining physician is generally entitled to more weight than the opinion of a non-examining physician, the Court disagrees that the ALJ may rely on the opinions of non-examining physicians "only" when those findings "do not contradict the opinions of examining physicians." Plaintiff's Objections at page 2. As set forth in Ferguson v. Secretary of HHS, 919 F. Supp. 1012, 1020 (E.D. Tex. 1996), the ALJ is given the responsibility of determining the "credibility of medical experts as well as lay witnesses and to weigh their opinions and testimony accordingly." While opinions of examining physicians are generally entitled to more weight than those of non-examining physicians, "the ALJ should reject the opinion of any physician when the evidence supports a contrary conclusion." Id. Here as in Ferguson, the ALJ found the statements of the physicians upon which the plaintiff relied to be against the great weight of the evidence. Id. The ALJ in Ferguson noted the record was "replete with references to the plaintiff's daily activities"; plaintiff was never restricted by any of her physicians; plaintiff's family physician failed to detect any abnormalities, and there was no indication plaintiff's affliction precluded light work. Likewise, the ALJ in this case found plaintiff's daily activities, the opinion of a non-psychiatrist examining physician, the opinion of a non-examining physician, as well as the fact plaintiff did not seek out treatment for her depression to be inconsistent with Dr. Hostetter's opinion. Having set forth the reasons for finding the evidence in the record inconsistent with Dr. Hostetter's findings, it was within the ALJ's discretion to give less weight to Dr. Hostetter's opinion. Id.; see Smith v. Schweiker, 795 F.2d 343, 345-46 (5th Cir. 1986) ("the testimony of a non-examining physician can be relied upon when it is consistent with the record"; "if the medical expert testimony from examining or treating physicians goes both ways, a determination coming down on the side of the non-examining, non-treating physician should stand").
After carefully reviewing the objections and the entire record in light of the prohibition against re-weighing the evidence, the Court finds substantial evidence does support the Commissioner's decision denying plaintiff's application for Supplement Security Income benefits and the decision comports with relevant legal standards.
Therefore, as required by 28 U.S.C. § 636(b)(1)(C), the Court has conducted an independent review of the entire record in this cause and a de novo review with respect to those matters raised by the objections. This Court hereby accepts, approves, and adopts the Magistrate Judge's factual findings and legal conclusions contained in the Memorandum and Recommendation. This Court agrees with the Magistrate Judge's recommendation that the decision of the Commissioner denying plaintiff's application for Supplemental Security Income benefits is supported by substantial evidence and should be affirmed. The Recommendation shall therefore be accepted pursuant to 28 U.S.C. § 636(b)(1).
Accordingly, it is hereby ORDERED that the Recommendation of the United States Magistrate Judge, filed in this case on July 11, 2005 (docket #15), is ACCEPTED such that the decision of the Commissioner denying plaintiff's application for Supplemental Security Income benefits is AFFIRMED. IT IS FURTHER ORDERED that this case is DISMISSED.
It is so ORDERED.