1 Citations to the proposed findings, conclusions, and

recommendation issued by the United States Magistrate Judge will

be "FC&R."

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

STEVEN E. PORTER, §

§

Plaintiff, §

§

VS. § NO. 4:04-CV-752-A

§

JO ANNE B. BARNHART, §

COMMISSIONER OF SOCIAL SECURITY,§

§

Defendant. §

MEMORANDUM OPINION

and

ORDER

Came on for consideration the above-captioned action wherein

Steven E. Porter is plaintiff and the Commissioner of Social

Security, currently Jo Anne B. Barnhart, is defendant. On

September 22, 2005, the United States Magistrate Judge issued his

proposed findings, conclusions, and recommendation,1 and granted

the parties until October 13, 2005, in which to file and serve

any written objections thereto. On October 3, 2005, plaintiff

filed his objections. Defendant filed a response to those

objections on November 1, 2005. 

I.

Standards of Review

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

court are whether (1) 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 (2)

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)). 

Once the magistrate judge has issued his proposed findings,

 

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conclusions, and recommendations, and the respondent 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). The

court now makes that determination in the context of the basic

principles mentioned above.

II.

Plaintiff's Objections and Rulings Thereon

Plaintiff makes two objections to the magistrate judge's

findings and conclusions. Both objections reassert his claim that

the ALJ's decision was not supported by substantial evidence. 

Specifically, plaintiff objects to the magistrate judge's

conclusion that substantial evidence supports the ALJ's finding

that plaintiff (1) did not suffer a severe mental impairment, and

(2) retained residual functioning capacity for sedentary work. 

In effect, plaintiff's objections are that the ALJ did not

agree with the testimony most favorable to his position. It is,

of course, not the court's function to determine if the ALJ could

have ruled differently; the court's duty is only to determine

whether there is "such relevant evidence as a reasonable mind

might accept as adequate to support [the ALJ's] conclusion."

Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951), citing

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). When

reviewing the record, the ALJ was entitled to determine the

credibility of the medical experts and weigh their opinions

 

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accordingly. Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir.

1990). Simply because the ALJ accorded more weight to the

testimony less favorable to plaintiff does not , alone,

constitute a basis for reversal. 

Nevertheless, plaintiff highlights the testimony of two

doctors he claims undermines the evidentiary basis of the ALJ's

decision. Indeed, the opinion of a treating physician is

normally accorded considerable weight in determining disability;

however, the ALJ may give less weight in the case of a treating

physician's opinion when that opinion lacks strong persuasive

weight, or is otherwise unsupported by the evidence. Scott v.

Heckler, 770 F.2d 482, 485 (5th Cir. 1985). Such is the case

with both physicians referred to in plaintiff's objections. In

the case of Dr. Samir Wahby, who diagnosed plaintiff as suffering

from a labile effect, the ALJ considered his testimony but

accorded it diminished weight because it was inconsistent with

the bulk of the evidence. See Leggett v. Chater, 67 F.3d 558,

564 (5th Cir. 1995). The second physician mentioned in

plaintiff's objections, Dr. Farrell Hillman, concluded that

plaintiff suffered from diminished social functioning, a poor

ability to concentrate and mild restrictions in his daily

activities. Nevertheless, Dr. Hillman still concluded that

plaintiff was capable of performing semi-skilled tasks in a

working environment. 

The court may not, as plaintiff would have it, isolate the

testimony of Drs. Hillman and Wahby from the total record. 

 

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Because the "evidence supporting [the ALJ's] decision is

substantial, when viewed in the light that the record in its

entirety furnishes, including the body of evidence opposed to the

[ALJ’s] view," Universal Camera Corp., 340 U.S. at 488, the

court adopts the findings, conclusions and recommendation of the

magistrate judge.

III.

Conclusion and Order

For the reasons stated above, all objections of plaintiff

are without merit. Therefore, the court accepts the magistrate

judge's proposed findings, conclusions, and recommendations. 

Consistent therewith,

The court ORDERS that the Commissioner's decision that

plaintiff did not qualify for a period of disability and

disability insurance benefits be, and is hereby, affirmed.

SIGNED November 18, 2005.

 /s/ John McBryde 

JOHN McBRYDE

United States District Judge

 

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