IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

CATHY J. MILLER, §

§

Plaintiff, §

§

VS. § NO. 4:04-CV-789-A

§

JO ANNE B. BARNHART, §

COMMISSIONER OF SOCIAL §

SECURITY, §

§

Defendant. §

MEMORANDUM OPINION

and

ORDER

Came on for consideration the above-captioned action wherein

Cathy J. Miller ("Miller") is plaintiff and the Commissioner of

Social Security, currently Jo Anne B. Barnhart, ("Commissioner")

is defendant. On December 21, 2005, the United States Magistrate

Judge issued his proposed Findings, Conclusions, and

Recommendation ("FC&R"), and granted the parties until January

11, 2006, in which to file and serve any written objections

thereto. On January 11, 2006, plaintiff filed her objections. 

Defendant filed a response to those objections on January 24,

2006. For the reasons given below, the court has concluded that

the objections lack merit.

I.

Standards of Review

Pursuant to 42 U.S.C. § 405(g), the only issues before the

court are whether the final decision of the Commissioner that

plaintiff is not disabled within the meaning of the Social

 

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Security Act is supported by substantial evidence, and whether

the decision complies with applicable legal standards. Crouchet

v. Sullivan, 885 F.2d 202, 204 (5th Cir. 1989). If supported by

substantial evidence, the Commissioner's findings are conclusive

and must be affirmed. Richardson v. Perales, 402 U.S. 389, 390

(1971). The court may not reweigh the evidence or substitute its

opinion for that of the Commissioner, but must scrutinize the

record in its entirety to ascertain whether substantial evidence

exists to support the Commissioner's findings. Fraga v. Bowen,

810 F.2d 1296, 1302 (5th Cir. 1987). 

Substantial evidence is more than a mere scintilla, less

than a preponderance, and is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion. 

Crouchet, 885 F.2d at 204. In determining whether the

Commissioner's decision is supported by substantial evidence, the

court considers (1) objective medical facts and clinical

findings, (2) diagnosis of examining physicians, (3) subjective

evidence of pain and disability as testified to by the claimant,

and (4) the claimant's age, education, and work history. Smith

v. Schweiker, 646 F.2d 1075, 1077 (5th Cir. Unit A June 1981). 

"[N]o substantial evidence" will be found only where there is a

"conspicuous absence of credible choices" or "no contrary medical

evidence." Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir.

1988) (citing Hames v. Heckler, 707 F.2d 162, 164 (5th Cir.

1983)). In the end, "[t]he inquiry [] is whether the record,

read as a whole, yields such evidence as would allow a reasonable

 

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When Miller applied for disability benefits in September

2000, she gave January 1, 2000, as the date when she became unable

to work because of her disabling condition. Tr. at 539. She,

through her attorney, reiterated that contention on April 16,

2003, the day before the hearing before the ALJ. Tr. at 158. Not

until after the hearing commenced on April 17, 2003, did Miller

change the onset date to May 9, 2001. Tr. at 52.

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mind to accept the conclusions reached by the [Commissioner]." 

Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000). 

Once the magistrate judge has issued his proposed findings,

conclusions, and recommendations, and the plaintiff has made

objections thereto, the district judge makes a de novo

determination of those portions of the magistrate judge's

specified proposed findings or recommendations to which objection

is made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

II.

The Decision of the Administrative Law Judge

The decision of the administrative law judge ("ALJ") became

the final decision of the Commissioner. Tr. at 5. The ALJ found

that:

(1) "Miller has met the disability insured status

requirements of the [Social Security] Act since her alleged onset

date of May 9, 2001."1 Tr. at 18.

(2) "Miller has not engaged in substantial gainful

employment at any time since May 9, 2001." Id.

 

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(3)

Miller has "severe" impairments in that she is status

post two lumbar discectomies, she is status post a twolevel cervical fusion, and she has one-level

pseudoarthrosis in her cervical spine and cervical

radiculopathy, but she does not have any impairment or

combination of impairments that is listed in, or that

equals in severity an impairment listed in, 20 C.F.R.

Part 404, Subpart P, Appendix 1.

Id.

(4) "Miller has objectively identifiable, medically

determinable impairments that reasonably could be expected to

produce the pain and other symptoms that she alleges." Tr. at

21.

(5)

Miller's allegations concerning her level of pain,

subjective complaints, and functional limitations are

not entirely credible or reasonably supported by the

findings of the objective medical evidence, or

inferences therefrom, to the extent that the claimant

has alleged the inability to engage in any work

activity since May 9, 2001.

Id.

(6)

In this case, neither the objective medical evidence,

the allegations of the claimant, nor the other nonmedical evidence establishes that the claimant's

ability to function is so severely impaired as to

preclude all work-related activities, even when taking

into consideration her functional limitations and her

subjective complaints.

Tr. at 23.

(7) "Miller retains the residual functional capacity to

obtain, perform, and maintain a limited range of sedentary work." 

Tr. at 24.

 

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(8)

Miller's ability to perform the full range of sedentary

work is reduced by the need to avoid more than

occasional kneeling, crouching, and crawling, by the

need to engage in limited walking and standing (in

combination, usually no more than sixty to ninety

minutes at a time and four to six hours in an eighthour workday), by the need to avoid sitting more than

sixty to ninety minutes at any one time, by the need to

avoid working at unprotected heights, by the need to

avoid climbing ladders and scaffolds, and by the need

to avoid overhead work and commercial driving.

Id.

(9) "Miller's past relevant work as a secretary does not

require the performance of work-related activities precluded by

the above limitations." Id.

(10) Miller was able to perform her past relevant work as a

secretary; thus she was not disabled. Tr. at 25.

(11) Miller's impairments did not prevent her from

performing her past relevant work as a secretary. Id.

(12) "Miller has not been under a 'disability' as defined in

the Social Security Act, at any relevant time through the date of

[the ALJ's] decision" on July 9, 2003. Id.

The ALJ discussed the exhibits and testimony pertinent to

whether Miller had a mental condition that was a significantly

disabling factor. Tr. at 20-22. However, as the ALJ's findings

mentioned above disclose, the ALJ did not find that Miller had a

mental problem that interfered with her ability to perform the

limited range of sedentary work that would be required for Miller

to do her past relevant work as a secretary. The ALJ concluded

that Miller's mental impairments were "not 'severe,' as they have

 

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mildly restricted her activities of daily living, have created

mild difficulties in maintaining social functioning, have

resulted in mild deficiencies of concentration, persistence, or

pace, and have never resulted in episodes of decompensation since

her alleged onset date." Tr. at 21.

III.

Grounds Urged by Miller in Her Appeal from

the Decision of the Commissioner

The grounds of Miller's appeal to this court from the

Commissioner's decision were that the ALJ did not (1) properly

consider all of Miller's "severe" impairments, (2) give proper

consideration to the opinions of Miller's treating physicians, or

(3) properly evaluate Miller's credibility.

In her argument in support of her first ground, Miller

summarized evidence pertaining to physical difficulties she

encountered from time to time, but she urged, as her main point,

that the ALJ erred in not finding a vocationally significant

mental impairment. The argument Miller made in support of her

second ground simply was that the magistrate judge should have

given more deference to the opinions of her treating physicians,

particularly their conclusory opinions that she was disabled. In

the final analysis, Miller's argument in support of her third

ground was that the ALJ failed to consider the possibility of an

emotional component of Miller's complaints of pain, with the

result that he failed to properly evaluate the credibility of her

complaints. 

 

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IV.

The FC&R

The magistrate judge recommended that the Commissioner's

decision be affirmed. As to Miller's first ground, the

magistrate judge concluded that the ALJ's assessment of Miller's

residual functional capacity is supported by substantial

evidence. The magistrate judge concluded that the ALJ gave due

deference to the opinions of Miller's treating physicians. And,

the magistrate judge concluded that the findings of the ALJ on

issues pertaining to Miller's credibility were properly within

the ALJ's discretionary powers.

V.

Miller's Objections to the FC&R

The nature of Miller's objections to the FC&R are not

clearly defined. As well as the court can interpret the

scattergun objections, they are similar to Miller's objections to

the Commissioner's decision. The court is interpreting the

objections to be that the magistrate judge should have concluded

that the ALJ (1) erred in not finding that Miller had a

vocationally significant mental impairment, (2) failed to give

due deference to the opinion of Miller's treating physicians, and

(3) failed to properly evaluate Miller's credibility regarding

her subjective pain level.

 

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VI.

Analysis

A. There is Ample Support in the Record for the ALJ's

Findings Concerning the Effect of Miller's Mental

Condition.

In the prehearing brief Miller, through her counsel,

provided to the ALJ, her emphasis was on physical problems she

had encountered over the years. Tr. at 158-60, 162-65. Her

short description of her mental condition was under the heading

"Depression," Tr. at 161, and was limited to a statement of

findings from evaluations made on May 23, 2000, October 2, 2000,

October 23, 2001, January 4, 2002, June 13, 2002, and July 24,

2002, id. Nothing in Miller's submission to the ALJ suggested

that Miller's mental impairments constituted a significantly

disabling factor. Indeed, Miller, through her attorney,

affirmatively limited the causes of her alleged disability to

neck and low back problems by the introductory sentence in the

prehearing brief that "Catherine Miller is a 57 year old woman

who is disabled by chronic pain syndrome caused by a cervical and

lumbar spine impairment, including failed fusion in her neck." 

Tr. at 158; 162.

None of the prehearing argument presented by Miller to the

ALJ suggested that she had a vocationally significant mental

impairment. Consistent with Miller's presentations, the ALJ did

not find that any mental condition Miller suffered would

interfere with her ability to do her past relevant work as a

secretary. Although finding that Miller's mental impairments had

 

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mildly restricted her activities of daily living, created mild

difficulties in maintaining social functioning, and resulted in

mild deficiencies of concentration, persistence, or pace, but had

never resulted in episodes of decompensation since the alleged

onset date, the ALJ concluded that Miller's mental impairments

were not "severe."

The ALJ's decision shows that his findings and conclusions

relative to Miller's mental condition were based on appropriate

consideration by the ALJ of the evidence on that subject. Tr. at

20-22. Substantial evidence supports the ALJ's express and

implied findings and conclusions relative to Miller's mental

condition. The court accepts the magistrate judge's findings on

this subject.

B. The ALJ Gave Due Deference to the Opinions of Miller's

Treating Physicians.

According to the ALJ, he could not give controlling weight

to the assessments as to disability given by the treating

physicians because they were not supported by, or consistent

with, the objective evidence. The text of the ALJ's decision

discloses that the ALJ gave the opinions of the treating

physicians appropriate consideration and the weight he thought

they deserved. He relied on those opinions in finding that

Miller's ability to perform the full range of sedentary work was

reduced by the need to avoid certain physical movements and

activities. 

The ALJ was entitled to draw on the knowledge he had

acquired in his judicial capacity in evaluating the weight to be

 

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given the opinions of Dr. Marable. He would have been derelict

in his fact-finding duties if he had accepted at face value the

conclusory opinions concerning disability given by a health care

provider known by him to be an unreliable source of information.

C. The ALJ Acted Within His Discretion in Determining the

Credibility to Give to Miller's Subjective Complaints.

After weighing the objective medical evidence, the ALJ

articulated reasons for discrediting Miller's subjective

complaints. The court finds acceptable, and adopts, the

magistrate judge's findings and conclusions on this subject. In

particular, the court agrees with the magistrate judge that "[i]t

is within the discretion of the ALJ to determine the disabling

nature of a claimant's pain and his findings on this issue are

afforded considerable deference." FC&R at 25. And, the court

adopts the magistrate judge's conclusion that "Miller has not

demonstrated that the ALJ's determination that her pain and other

symptoms did not preclude the performance of a modified range of

sedentary work is either an abuse of that discretion or

unsupported by substantial evidence." Id.

VII.

Conclusion and Order

For the reasons stated above, the court concludes that all

objections of plaintiff to the FC&R are without merit. 

Therefore, the court accepts the magistrate judge's proposed

findings, conclusions, and recommendations. Consistent

therewith,

 

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The court ORDERS that the Commissioner's decision be, and is

hereby, affirmed.

SIGNED April 20, 2006.

 /s/John McBryde 

JOHN McBRYDE

United States District Judge

 

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