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Hodge v. Commissioner, SSA

United States District Court, E.D. Texas, Sherman Division

September 27, 2019

GREGORY K. HODGE
v.
COMMISSIONER, SSA

          Nowak, Judge

          MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE

         Came on for consideration the report of the United States Magistrate Judge in this action, this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636. On August 30, 2019, the report of the Magistrate Judge (Dkt. #19) was entered containing proposed findings of fact and recommendations that the final decision of the Commissioner of the Social Security Administration be affirmed. Having received the report of the Magistrate Judge, having considered Plaintiff’s Objections (Dkt. #20), and Defendant’s Response (Dkt. #23), and having conducted a de novo review, the Court is of the opinion that the Magistrate Judge’s report should be adopted.

         OBJECTIONS TO REPORT AND RECOMMENDATION

         A party who files timely written objections to a magistrate judge’s report and recommendation is entitled to a de novo review of those findings or recommendations to which the party specifically objects. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(2)-(3). Objections to a report must specifically identify portions of the report and the basis for those objections. Fed.R.Civ.P. 72(b); see also Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987) (explaining that if the party fails to properly object because the objections lack the requisite specificity, then de novo review by the court is not required.). In other words, a party objecting to a magistrate judge’s report must specifically identify those findings to which he or she objects. Moreover, the District Court need not consider frivolous, conclusory, or general objections. Nettles v. Wainwright, 677 F.2d 404, 410 n.8 (5th Cir. 1982) (en banc), overruled on other grounds by Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc).

         Plaintiff argues that the Magistrate Judge erred in finding that (1) the ALJ properly considered the physical functional limitations of consultative examiner Dr. Mahir Patel (“Dr. Patel”); (2) the ALJ fully and fairly developed the record (Dkt. #20 at p. 6); and (3) there was no conflict between the Dictionary of Occupational Titles (“DOT”) and the testimony of the vocational expert (“VE”) (Dkt. #20 at pp. 6–8).

         Findings of Dr. Patel and Plaintiff’s Ability to Ambulate

          Plaintiff takes issue with the Magistrate Judge’s conclusion that Dr. Patel’s opinion finding “moderate” or “severe” limitations did not adequately describe Plaintiff’s physical functional abilities (Dkt. #20 at p. 1). Regarding Plaintiff’s functional limitations, Dr. Patel’s consultative examination states:

The claimant has moderate limitations with sitting and standing, and moderate to severe limitations walking due to pain in the knees, hips and lower back. The claimant does need an assistive device, a cane, with regards to long distances and uneven terrain. The claimant has moderate to severe limitations with lifting and carrying weight due to pain in the knees, hips and lower back. There are limitations on bending, stooping, crouching and squatting and so on and the claimant will be able to perform these infrequently due to pain in the knees, hips and lower back. There are no manipulative limitations on reaching and the claimant will be able to perform this frequently. There are manipulative limitations on the left side only on handling, feeling, grasping and fingering and the claimant will be able to perform these occasionally due to left wrist pain. There are some relevant visual limitations due to decreased bilateral visual acuity without corrective lenses.

(TR pp. 382–83) (emphasis added). Dr. Patel did not opine on or otherwise determine the applicability of any specific functional limitations-aside from the use of a cane for long distances or on uneven terrain. Classification of Plaintiff’s impairments as “severe” or “moderate” in connection with Plaintiff’s ability to ambulate does not demonstrate a specific, functional limitation. The ALJ explained that because Dr. Patel did not adequately describe the claimant’s residual functional abilities and because “severe” walking limitations were not consistent with other evidence in the file, Dr. Patel’s opinion was given partial weight (TR p. 22). Plaintiff’s contention that the ALJ’s reasoning for assigning Dr. Patel’s opinion partial weight-because the term moderate did not adequately describe a functional limitation-is “meritless” because the ALJ later derived an RFC is unavailing (Dkt. #20 at p. 2). As explained by the Magistrate Judge:

As is evident from the record, Plaintiff’s ability to ambulate without assistance and gait is sporadic. The ALJ directly addresses this point in his credibility finding…. While Plaintiff submits that Dr. Patel’s finding of a “moderate to severe” limitation in walking does not equate to Dr. Harper’s finding that Plaintiff has the ability to walk for 4 hours in an 8 hour work day [Dkt. 16 at 11], Plaintiff’s RFC is neither an outright adoption of Dr. Patel, nor Drs. Harper and Hegde’s opinions of Plaintiff’s functional capacity [TR 21-22, 62-64, 73-76, 377-84] and as fact finder, the ALJ is entitled to resolve the inconsistencies in the record and opinion evidence-such as the walking limitations assessed by Drs. Harper and Patel. Plaintiff’s primary contention essentially comes down to a disagreement with the ALJ’s disposition of the evidence.

(Dkt. #19 at pp. 15–16) (internal quotations and citations omitted). Here, the ALJ did not adopt Dr. Patel’s opinion when “it served the ALJ’s purpose” (Dkt. #20 at p. 2); instead, the ALJ properly weighed the competing evidence and developed an RFC based on the findings of Dr. Patel and the other medical opinions in the record, including the state agency medical consultants (Drs. Harper and Hedge).

         Plaintiff further continues to assert that the ALJ erred in not including the need for use of a cane in the RFC assessment (Dkt. #20 at pp. 2–6). In support of such argument, Plaintiff points to his history of edema and Dr. Patel’s opinion that a cane would be needed for long distances and uneven terrain (Dkt. #20 at p. 3). Plaintiff’s argument again quarrels with the disposition of the evidence. The ALJ’s decision repeatedly notes numerous records regarding Plaintiff’s gait and ability to ambulate (TR pp. 16–19). In finding that Plaintiff’s ability to ambulate without assistance and gait was sporadic and/or inconsistent the ALJ explained:

The claimant has stated that he could not walk because of his legs. (Exhibit 9E/4). I note that this is inconsistent with the medical evidence in that the claimant’s leg swelling seemed to occur when he was non-compliant with his edema medication (e.g., Exhibits 4F, 5F). Further, the record demonstrates that the claimant uses a cane inconsistently and the claimant’s gait has been noted to be normal on many occasions (Exhibit 5F). The record is mixed as to motor loss with the ...

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