SHARION AYCOCK, District Judge.
Plaintiff Saulsberry filed this civil action for judicial review of the denial by the Commissioner of Social Security of his claim for Disability Insurance Benefits under Title II of the Social Security Act. The Magistrate Judge assigned in this case prepared a Report and Recommendation, and Plaintiff has filed an Objection. After reviewing the Report and Recommendation, Objection, rules and authorities, the Court makes the following findings:
Factual and Procedural History
On March 5, 2009, Plaintiff filed a Title II application for disability insurance benefits along with a Title XVI application for supplemental security income alleging that he became disabled on January 1, 2008 because of Reflex Sympathetic Dystrophy ("RSD"), a chronic pain syndrome, and back problems. These claims were denied on March 27, 2009. On reconsideration, these claims were again denied. Plaintiff subsequently requested a hearing which was held on February 17, 2011. At that hearing, the Administrative Law Judge ("ALJ") found that Plaintiff suffered from the following severe impairments: Reflex Sympathy Dystrophy of the left upper extremity with left arm and shoulder pain, back disorder, osteoarthritis, hypertension, and residual effects of disc herniation surgery which constitute severe medically determinable impairments. After the conclusion of the administrative hearing, the ALJ made a number of findings, ultimately holding that Plaintiff was not "disabled" under the statute as he has the residual functional capacity to perform light work utilizing the dominant right hand and arm. On appeal, however, Plaintiff disagrees with the finding of "not disabled" by the ALJ and raises four issues: a.) the ALJ's weighing of treating physician's testimony, b.) the ALJ's failure to consider Social Security Ruling 03-2p, c.) the ALJ's hypothetical question to the vocational expert, and d.) the ALJ's failure to consider "pain" as a disability.
The Magistrate Judge assigned to this case issued a Report and Recommendation to this Court urging that the Commissioner's decision be affirmed. Plaintiff has filed an Objection to the Report and Recommendation.
Because Plaintiff has filed an Objection to the Magistrate Judge's Report and Recommendation, the Court is required to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1); see also Longmire v. Guste , 921 F.2d 620, 623 (5th Cir. 1991) (holding that a party is "entitled to a de novo review by an Article III Judge as to those issues to which an objection is made"). The Court is not required, however, to reiterate the findings and conclusions of the Magistrate Judge, Koetting v. Thompson , 995 F.2d 37, 40 (5th Cir. 1993), nor need it consider objections that are frivolous, conclusive, or general in nature, Battle v. United States Parole Comm'n , 834 F.2d 419, 421 (5th Cir. 1997). The Court must determine whether or not the Commissioner's decision is supported by substantial evidence and, if it is, then it must affirm the decision of the Commissioner.
In applying the "substantial evidence" standard, the Court "may not reweigh the evidence in the record, nor try the issues de novo, nor substitute [the Court's] judgment for the Secretary's, even if the evidence preponderates against the Secretary's decision." Harrell v. Bowen , 862 F.2d 471, 475 (5th Cir. 1988); Bowling v. Shalala , 36 F.3d 431, 434 (5th Cir. 1994) "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." Kane v. Heckler , 731 F.2d at 1219 (citing Richardson v. Perales , 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)); Carrier v. Sullivan , 944 F.2d 243, 245 (5th Cir. 1991). It must do more than create a suspicion of the existence of the fact to be established, but "no substantial evidence" will be found only where there is a "conspicuous absence of credible choices" or "no contrary medical evidence." Hames v. Heckler , 707 F.2d 162, 164 (5th Cir. 1983)(citations omitted); Johnson v. Bowen , 864 F.2d 340, 343-44 (5th Cir. 1988). The Secretary's findings on all factual issues are final if they are supported by substantial evidence. Taylor v. Bowen , 782 F.2d 1294, 1298 (5th Cir. 1986).
Report and Recommendations
In an extensive and detailed twenty-eight page opinion, Magistrate Judge Sanders specifically chronicles Plaintiff's work and medical history, evidence of disability, and hearing testimony. The Report and Recommendation particularly addresses the ALJ's failure to consider Social Security Ruling (SSR) 03-02p, the ALJ's reliance on the treating physicians' opinions, the Step Five determination, and Plaintiff's argument that the treating physicians should be recontacted on remand.
Judge Sanders noted that while the ALJ did not expressly cite the Social Security Ruling, there was no case law cited mandating that the ALJ do so in making his determination. Indeed, the Magistrate Judge found persuasive authority to the contrary. See Whatley v. Astrue, 2012 WL 3704988 (D. Colo. Aug. 27, 2012) ("In this case, the ALJ's decision incorporates many aspects of SSR 03-02p; it is not error for the ALJ to fail, in addition, to explicitly cite the referenced regulation"); Alexander v. Astrue, 2012 WL 2848154 (D. Ariz. July 11, 2012) ("While the ALJ did not cite the Social Security Ruling in his decision, Plaintiff does not dispute that he followed the required sequential evaluation process in evaluating her disability claim. The ALJ did not commit legal error in failing to cite SSR 03-02p"). Therefore, the Magistrate Judge found no error in the ALJ's failure to cite the Social Security Ruling in Saulsberry's case. Moreover, the Magistrate Judge acknowledged that the ALJ specifically noted that he was familiar with the RSD diagnosis and found that Plaintiff's onset of RSD was a medically determinable, severe impairment. The ALJ particularly held that the claimant's use of the affected arm was impaired because of the pain from RSD. However, the Magistrate Judge found no error in the ALJ's credibility determination in analyzing Plaintiff's functional capacity. Indeed, the Magistrate Judge held that while conflicting evidence regarding Saulsberry's complaints and the medical record existed, substantial evidence contradicting Plaintiff's claims support the ALJ's determination of Residual Functional Capacity (RFC).
The Magistrate Judge also held that the "treating physician's rule" from Netwon v. Apfel , 209 F.3d 448, 453 (5th Cir. 2005), did not apply because the factual predicate for application of the rule was missing. The Fifth Circuit concluded that "absent reliable medical evidence from a treating or examining physician converting the claimant's treating specialist, an ALJ may reject the opinion of the treating physician only if the ALJ performs a detailed analysis of the treating physician's views under the criteria set forth in 20 C.F.R. § 404.1527(d)(2)." Id . Here, the Magistrate Judge noted that there was substantial contradiction among the opinions of the three treating/examining sources; thus, there was no requirement for the ALJ to perform a detailed analysis when rejecting said opinion.
As to the Step Five determination, the Magistrate Judge held that because the functional capacity determination is frequently impacted by the ALJ's credibility assessment of the claimant's testimony, the ALJ's decision was supported by substantial evidence. Indeed, relying on treating physician Dr. Schnapp's opinion that Saulsberry could lift no more than five pounds frequently or occasionally, and Dr. Randolph's finding of no limitation on Plaintiff's dominant right side, the ALJ found no basis for finding a restriction on Plaintiff's right arm. The Magistrate Judge further held that even if there was error in the ALJ determination that Plaintiff could perform light work, two jobs at sedentary level were identified that could be performed without the use of the left arm. Therefore, the Magistrate Judge affirmed the ALJ's determination that the Administration carried its burden under Step Five.
Because the record was clear that the ALJ's determination that Plaintiff was not "disabled" under the statute was supported by substantial evidence, the Magistrate Judge recommended that this Court ...