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 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

KELLEY L. BROWN, §

§

Plaintiff, §

§

VS. § NO. 4:05-CV-309-A

§

JO ANNE B. BARNHART, §

COMMISSIONER OF SOCIAL SECURITY, §

§

Defendant. §

MEMORANDUM OPINION

and

ORDER

Came on for consideration the above-captioned action wherein

Kelley L. Brown is plaintiff and the Commissioner of Social

Security, currently Jo Anne B. Barnhart, is defendant. On May 2,

2006, the United States Magistrate Judge issued his proposed

findings, conclusions, and recommendation,1 and granted the parties

until May 23, 2006, in which to file and serve any written

objections thereto. On May 23, 2006, plaintiff filed her

objections. Defendant filed a response to those objections on June

1, 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 Security

Act is supported by substantial evidence, and whether the decision

 

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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 mind to accept the conclusions

 

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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 recommendation, 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 recommendation to which objection is made. 28

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

II.

Plaintiff's Objections and Rulings Thereon

Plaintiff makes three objections, the thrust of each of which

can accurately be characterized as an objection to the magistrate

judge's proposed finding that the decision of the administrative

law judge ("ALJ") regarding plaintiff's residual functioning

capacity was supported by substantial evidence. A subsidiary

objection is that the magistrate judge erred in finding that the

ALJ gave appropriate consideration to the opinion of Dr. Steven E.

Greer, a clinical psychologist who evaluated plaintiff's condition. 

The court disagrees with plaintiff's contention that "all the

evidentiary choices weighed in favor of supporting Dr. Greer's

opinion." Objections at 4. The ALJ was entitled to determine the

credibility of Dr. Greer and weigh his opinions accordingly. Moore

v. Sullivan, 919 F.2d 901, 905 (5th Cir. 1990). There was relevant

evidence that a reasonable mind might accept as adequate to support

the conclusion that Dr. Greer's opinion was not entirely reliable. 

Because the ALJ found Dr. Greer's opinion unpersuasive, the ALJ was

 

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 The ALJ stated: "[Dr. Savell] reported the claimant's handwriting

appeared to be very shaky; however, he noted her hand did not shake and

she appeared to be deliberately moving the pencil from side to side."

App. at 28.

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within his discretion to accord Dr. Greer's opinion less weight.

See Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985). 

More importantly, there is credible evidence in the record

supporting the ALJ's decision relative to residual functioning

capacity--for examples, the opinion of the impartial medical

expert, Dr. Otto L. Wilbanks, the belief of Dr. John Savell that

plaintiff was possibly malingering with respect to her volitional

abilities,2 and internal inconsistencies in Dr. Greer's opinions. 

See Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). Therefore,

the court concludes the magistrate judge correctly found that there

is substantial evidence supporting the ALJ's decision residual

functioning capacity findings.

III.

Conclusion and Order

For the reasons stated above, the court accepts the magistrate

judge's proposed findings, conclusions, and recommendation. 

Therefore,

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

hereby, affirmed.

SIGNED August 23, 2006.

 /s/ John McBryde 

JOHN McBRYDE

United States District Judge

 

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