Opinion
No. 1:03-CV-485.
January 24, 2005
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
In this action, plaintiff seeks judicial review of the Commissioner of Social Security Administration's ("SSA") decision denying her application for Disability Insurance Benefits ("DIB"). This case is referred to the undersigned United States Magistrate Judge for review, hearing if necessary, and submission of a report with recommended findings of fact and conclusions of law. See 28 U.S.C. § 636(b)(1)(B) (2001) and Loc. R. CV-72 App. B, R.1(H) for the Assignment of Duties to United States Magistrate Judges, and Beaumont General Order 03-02.
The DIB program provides income to individuals who are forced into involuntary, premature retirement, provided they are both insured and disabled. See 42 U.S.C. § 423(a); see also Mathews v. Castro, 429 U.S. 181, 186 (1976). DIB is authorized by Title II of the Social Security Act, and is funded by Social Security taxes. See Social Security Administration, Social Security Handbook, § 2100 (14th ed. 2001).
I. JUDICIAL REVIEW
Title 42 U.S.C. § 405 authorizes United States district courts to conduct judicial review of the Commissioner's final decisions regarding applications for social security benefits. 42 U.S.C. § 405 (2003). Judicial review is limited. The court's role is to determine whether (a) the Commissioner applied proper legal standards and (b) the decision is supported by substantial evidence. See Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir. 1992). If proper principles of law were applied, and if the Commissioner's decision is supported by substantial evidence, the Commissioner's findings are conclusive and must be affirmed.Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co., 305 U.S. 197, 230, 59 S. Ct. 206, 217, 83 L.Ed. 126 (1938)); see also, 42 U.S.C. § 405(g).By local orders of the court, complaints seeking judicial review of administrative decisions denying applications for social security benefits are treated as appeals. The party seeking review is required to specify alleged points of error, and to submit a brief containing legal arguments directed to those points. The Commissioner is ordered to file a brief in response. The court limits the scope of its judicial review to the points argued in the briefs. See Order Directing Filing of Briefs (Docket No. 12) and Notice to Parties in Social Security Appeal Cases (Docket No. 11).
II. PROCEEDINGS
Plaintiff applied for DIB on June 2, 2000 (Tr. 89-91), claiming disability due to "nerve in back and eczema on skin" (Tr. 101). Later, in her "Pain Report Adult," plaintiff also claimed disability due to pain in her right hand (Tr. 131).Plaintiff's claim was denied initially (Tr. 61) and upon reconsideration (Tr. 70). Plaintiff then requested a hearing before an administrative law judge ("ALJ") (Tr. 74). ALJ Christopher L. Williams convened an evidentiary hearing on July 10, 2002, at which plaintiff appeared and testified. Plaintiff was represented at the hearing by attorney Robert Hardy, Esq.
At the evidentiary hearing ALJ Williams received testimony from plaintiff, from a medical expert ("ME") Dr. Charles Murphy; and from a vocational expert ("VE"), Tammie Donaldson. The remaining evidentiary record consisted of reports and treatment notes from treating sources; a consultative report from Dr. Pratibha A. Deshpande, M.D., who examined plaintiff on January 15, 2002, upon referral from Texas Rehabilitation Commission Disability Determination Services; and answers to "functional assessment" interrogatories propounded by plaintiff's counsel to treating physicians Pearson and Best.
A medical adviser, at the request of the Social Security Administration, reviews the claimant's medical records and then gives an expert opinion as to the extent of claimant's impairment. See 20 C.F.R. § 404.1527(f)(2)(iii) (2004). When a medical professional functions as an expert witness rather than an adviser in the course of an administrative law judge hearing, Social Security Ruling 96-6p designates such professional as a "medical expert." Social Security Ruling 96-6p, 1996.
In the instant case, the ALJ refers to Dr. Murphy as a "medical expert." Tr. 17.
Dr. Charles Michael Murphy, M.D., specializes in internal medicine and practices direct patient care in Dallas, Texas. Tr. 79.
Vocational Experts are utilized by the ALJ to "assess whether jobs exist for a person with the claimant's precise abilities." Gilliam v. Califano, 620 F.2d 691, 694 (8th Cir. 1980). The VE's testimony must: (1) assess the effect of any limitation on the range of work at issue; (2) advise whether the impaired person's residual functional capacity permits him or her to perform substantial numbers of occupations within the range of work at issue; and, (3) identify jobs if they exist and provide a statement of the incidence of such jobs in the region in which the person lives. See Ellison v. Sullivan, 921 F.2d 816 (8th Cir. 1990).
Tammie C. Donaldson holds a Master of Science degree in Rehabilitation Counseling and Rehabilitation Services from the University of North Texas in Denton, Texas. Tr. 82.
Plaintiff's medical records indicate a history of treatment for eczema, low back pain, fractured right arm, and general complaints such as cough and sore throat. Plaintiff was treated for these ailments at St. Elizabeth Family Practice Clinic in Jasper, Texas; Christus Family Practice Center in Jasper, Texas; and Gulf Coast Health Center in Port Arthur, Texas.
The administrative record indicates that Dr. Lynn Pearson, M.D., treated plaintiff on November 6, 1997, for "trans-sacral left sciatic irritation" and "cutaneous problem." Dr. Pearson noted that "lateral x-rays of the lumbar spine are within normal bone/joint architectural limits, no fractures, dislocations or spondylolisthesis notes." Tr. 193. Dr. Pearson next saw plaintiff on October 24, 2000, when she noted plaintiff's "left sciatic irritation much improved, tolerating the medication, walking easier." Tr. 192. The remainder of Dr. Pearson's notes refer to treatment of "fracture of [plaintiff's] right radius in the proximal third," sustained in an automobile accident. Tr. 192. Dr. Pearson performed surgery — "open reduction internal fixation, three screws below and two screws above the fracture and colograph" — on November 2, 2000. Tr. 186. On February 19, 2001, Dr. Pearson noted, "fracture line obliterated. . . . The forearm is doing well," and discharged her from care. Tr. 173.
The administrative record does not indicate treatment by Dr. Kim Best. However, Dr. Best is associated with Gulf Coast Medical Clinic, whose clinic notes comprise pages 219-225 of the transcript. The physician's signature on those notes is illegible and may be Dr. Best's. Clinic notes dated from August 9, 2001, to November 9, 2001, indicate that plaintiff was treated for eczema, insomnia, "bone pain" (Tr. 225), and "rash" (Tr. 220), and was given flu vaccine (Tr. 219).
A consultative physician is a physician who performs a discrete individual examination of the plaintiff at the request of Social Security Administration, who may not have the history or perspective attendant with treating an individual over a period of time. See 20 C.F.R. 1519, 404.1519h (2004).
"A consultative examination is a physical or mental examination or test purchased for [a claimant] at [SSA's] request and expense from a treating source or another medical source." 20 C.F.R. § 404.1519 (2004).
Dr. Deshpande's report recited plaintiff's history of subjective complaints of low back pain with sciatica. Upon examination, he found evidence of rash which was worse on plaintiff's legs, and musculoskeletal complaints: tenderness on right side of lumbosacral area, forward flexion limited to 60 degrees, and right hand grip "marginally weaker than the left." Tr. 228. Lumbar spine x-ray ordered by Deshpande showed "normal lumbosacral spine." Tr. 230.
Dr. Deshpande opined that plaintiff can lift less than 10 pounds frequently, with limited ability to handle, finger, push and pull, citing "rt hand grip . . . weak s/p surgery rt forearm" as his clinical/medical finding in support. Tr. 231-32. Citing plaintiff's subjective complaints of low back pain and sciatica in support, he opined that plaintiff can stand/walk at least 2 hours and sit less than 6 hours in an 8-hour workday, with postural capabilities (climb, balance, stoop, crouch, kneel and crawl) occasionally affected. Tr. 231-32. Citing plaintiff's eczema and subjective low back pain in support, he advised limited exposure to heights, moving machinery, temperature extremes, humidity and chemical exposure. Tr. 232.
III. THE ADMINISTRATIVE DECISION
A. Sequential Evaluation
Regulations require a five-step sequential analysis for initial disability determinations. If a claimant is found not disabled at any step, remaining steps are not considered. 20 C.F.R. § 404.1520 (2004). The burden is on a claimant at every stage, except for the initial inquiry at Step 5. Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002);Chaparro v. Bowen, 815 f.2d at 1010. The five-step sequential analysis for determining applications for benefits based on disability is approved by courts.
The five steps are as follows:
1. The Commissioner ascertains whether the applicant is currently engaging in substantial gainful activity. (If so, a finding of non-disability is entered and the inquiry ends.)
2. The Commissioner determines if the applicant's impairment or combination of impairments is severe, that is, of a magnitude sufficient to limit significantly the individual's physical or mental ability to do basic work activities. (If not, the inquiry ends and a finding of non-disability is entered.)
3. The Commissioner determines whether the severe impairment equals or exceeds those in the Listing of Impairments, 20 C.F.R. Pt. 404, Subpt. P, Appendix 1 (2004) ("the Listings"). (If so, disability is presumed and benefits are awarded.)
4. The Commissioner determines whether the impairment prevents the individual from engaging in his regular previous employment. (If so, a prima facie case of disability is established and the burden of going forward (to the fifth step) shifts to the Commissioner. See Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th Cir. 1987).
5. The Commissioner determines whether other work exists in the national economy which the applicant can perform. (If the Commissioner establishes that an applicant can perform alternative employment, the burden shifts back to the applicant to show he cannot perform the alternative labor. See Id.; Taylor v. Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986); 20 C.F.R. § 404.1520(a) — (f) (2004)).
See Bowen v. Yuckert, 482 U.S. 137, 153, 107 S. Ct. 2287, 2297, 96 L.Ed.2d 119 (1987) (citing Heckler v. Campbell, 461 U.S. 458, 461, 103 S. Ct. 1952, 1954, 76 L.Ed.2d 66 (1983)) (The use of the sequential evaluation process "contribute[s] to the uniformity and efficiency of disability determinations").
B. Decision
ALJ Williams concluded at step four of the sequential analysis that plaintiff is not disabled. Specifically, he found that plaintiff's combination of impairments — low back pain and eczema — do not prevent her from performing her past work relevant work as a door greeter. Tr. 20, Finding 9. He therefore found that plaintiff "was not under a 'disability' as defined in the Social Security Act, at any time through the date of the decision." Tr. 20, Finding 10.
The Social Security Administration defines past relevant work: " Work experience means skills and abilities you have acquired through work you have done which show the type of work you may be expected to do. . . . We consider that your work experience applies [is relevant] when it was done within the last 15 years, lasted long enough for you to learn to do it, and was substantial gainful activity." 20 C.F.R. § 404.1565(a) (2004); see also Soc. Sec. R. 82-62 (PPS-80) (1982).
ALJ Williams came to this conclusion only after first determining that plaintiff "retains the residual functional capacity to perform the exertional demands of light work with limitations. . . . [no exposure to] temperature or moisture extremes, no working at heights, crawling or with vibration. . . . [and only occasional] stooping and crouching." Tr. 19. He then relied on VE Donaldson's testimony that a person with plaintiff's residual functional capacity could perform gainful employment as a door greeter, as plaintiff actually performed that work. (Tr. 19, 55).
The critical finding for present purposes is the residual functional capacity [RFC] determination. ALJ Williams found that plaintiff can perform a limited range of light work. In so doing, ALJ Williams relied on testimony of ME Murphy, while rejecting opinions of treating physicians Pearson and Best (expressed in the "functional assessment" interrogatories) and examining physician Deshpande, each of whom found plaintiff's limitations regarding lifting, walking, standing or sitting severe enough to preclude functional capacity for light work.
"Residual functional capacity (RFC) is defined as "the most you can still do despite your limitations." 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1) (2004). It has three components: physical abilities, mental abilities, and other impairments.Id.
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. . . . [Light work] requires a good deal of walking or standing, or . . . sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, [a claimant] must have the ability to do substantially all of these activities." 20 C.F.R. § 404.1567(b) (2004).
IV. POINTS OF ERROR
Plaintiff asserts a single point of error as follows:
"Whether the finding . . . is consistent with applicable legal standards and supported by substantial evidence when the administrative law judge rejected the opinions of two treating physicians and a consultative examining physician and relied on the testimony of a paid non-examining 'medical expert' apparently called simply to manufacture contrary opinion evidence."
Pl.'s Br. at "Statement of the Issue." As briefed, plaintiff argues that rejecting treating physician and consultative examining physician opinion while adopting opinion of a non-treating, non-examining medical expert constitutes failure to apply proper legal principles. Plaintiff also argues that adopting the opinion of a non-treating, non-examining medical expert rather than recontacting plaintiff's treating physicians for additional information results in a decision not supported by substantial evidence.
The Commissioner responds that ALJ Williams (1) properly evaluated and properly assigned lesser weight to opinions from treating and consultative examining physicians because their opinions were not supported by medical evidence (Deft.'s Br. at p. 4-8); (2) properly weighed the medical expert's testimony in that the medical expert's testimony was based on objective medical evidence, specifically "two normal lumbar spine x-rays" (Id. at p. 9); and (3) was not required to recontact treating physician's because ample record evidence existed upon which to base a disability finding (Id. at p. 12-13).
V. DISCUSSION AND ANALYSIS
A. Did ALJ Fail To Apply Proper Legal Standards?
Plaintiff correctly argues that treating physicians' opinions on medical issues, i.e., the nature and severity of a patient's impairment ordinarily are entitled to controlling weight. See 20 C.F.R. § 404.1527(d)(2) (2004); SSR 96-2p, 61 F.R. 34490, 34491 (July 2, 1996); Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985) (citing Barajas v. Heckler, 738 F.2d 641, 644 (5th Cir. 1984)); see also Myers v. Apfel, 238 F.3d 617, 621 (5th Cir. 2001) (citing Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994) (internal citations omitted)); Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000). However, the general bias in favor of treating physician opinion is subordinate to the Commissioner's overarching duty to weigh evidence fairly and resolve conflicts. Thus, in appropriate cases, the Commissioner may base a decision on testimony of a medical expert witness who neither treated nor examined a claimant. See e.g., Richardson v. Perales, 402 U.S. at 408, 91 S. Ct. at 1431 ("We see nothing unconstitutional or improper in the medical adviser concept. . . ."); see alsoKinash v. Callahan, 129 F.3d 736, 739 (5th Cir. 1997) (Testimony of medical expert provided "sufficient evidence for the Commissioner to find that [plaintiff] did not suffer from . . . listed condition."). This prerogative exists even when the medical expert's testimony conflicts with evidence from treating or consultative examining sources. Masterson v. Barnhart, 309 F.3d at 273; Hudson v. Barnhart, 345 F.3d 661, 666 (8th Cir. 2003) (ALJ properly relied on medical expert's testimony which pointed out inconsistencies in treating physician's records);Morgan v. Apfel, 160 F.3d 595, 601 (9th Cir. 1999) (Medical expert's testimony, in combination with other evidence, provided substantial evidence justifying rejection of treating physician's opinion).
ALJ Williams did not commit obvious legal error simply by relying on medical expert testimony and rejecting treating physician and examining physician opinion when determining plaintiff's residual functional capacity. However, to survive judicial review, ALJ Williams must not have discounted or rejected the treating physician and examining physician opinions casually, or — as plaintiff suggests — merely to achieve a desired result. Rather, there must be good cause for the credibility choice. Good cause may exist when the treating physician's statements are conclusory and brief; when statements are unsupported by medically acceptable clinical, laboratory, or diagnostic techniques; otherwise unsupported by the evidence; or when the treating physician is not credible because (s)he is "leaning over backwards to support the application for disability benefits."Scott, 770 F.2d at 485; see also Myers v. Apfel, 238 F.3d at 621 (citing Greenspan v. Shalala, 38 F.3d at 237); Newton v. Apfel, 209 F.3d at 456.
Here, ALJ Williams demonstrated good cause. Regarding both treating physicians, he observed that no physical or laboratory findings provide a basis for opinions of Drs. Best or Pearson that plaintiff's impairments preclude employment. Tr. 17. Within the "function assessment" interrogatories, neither Dr. Pearson nor Dr. Best provided clinical or laboratory data to support their opinions, referred to any supporting data in their existing clinical notes, or otherwise elaborated on their "yes," "no," or multiple choice type answers. Moreover, plaintiff did not provide any supplementation to the interrogatory answers, nor point to any specific evidence in the record which supports the degree of limitation as assessed by the physicians. See 20 C.F.R. § 404.1527(d)(2) (2004); Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000) ("Medical evidence must support a physician's diagnosis. . . ."); SSR 96-2p, 61 F.R. 34490, 34491 (July 2, 1996). Therefore, ALJ Williams acted within his discretion when he accorded lesser weight to opinions of Dr. Pearson and Dr. Best.
As for the examining physician opinion, ALJ Williams again demonstrated good cause for rejecting it. ALJ Williams examined Dr. Deshpande's opinion in detail but concluded that it, like the other "medical opinions of record [did] not indicate the physical or laboratory findings on which they are based." Tr. 17. He concluded that Dr. Deshpande's opinion was based on plaintiff's subjective complaints, and his findings that plaintiff's forward flexion was limited to 60 degrees and her extension to 20 degrees were unsupported by clinical or laboratory evidence. Moreover, radiological evidence showing a normal lumbar spine contradicted that finding. See Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir. 1981) ("An acceptable medical opinion. . . . must be supported by clinical or laboratory findings."). Additionally, his findings regarding plaintiff's inability to lift less than 10 pounds conflicted with both of plaintiff's treating physicians opinions that plaintiff can lift 10 pounds on a regular and sustained basis. Finally, Dr. Deshande's opinion regarding plaintiff's lifting ability is internally inconsistent in that he found only marginal weakness in plaintiff's right hand grip (Tr. 228), and noted that plaintiff "had good range of movement in all the joints of the right forearm." Tr. 228. Thus, ALJ Williams again acted within his discretion when he accorded lesser weight to Dr. Deshpande's opinion.
Dr. Pearson, who treated plaintiff's fractured right arm, agreed. She released plaintiff from care three months after surgery, noting that the fracture was healed and the forearm was doing well. See Tr. 173; n. 6, supra.
The final question, then, is whether — irrespective of good cause to reject treating or consultative examining physician opinion — ALJ Williams erred in accepting ME Murphy's opinion. At the administrative hearing, and again in this proceeding, plaintiff's counsel argues that if treating physician opinion is rejected because it is unsupported by medically acceptable clinical, laboratory, or diagnostic techniques, there surely must be legal error in accepting similarly unsupported medical expert opinion. See. Tr. 50; Pl.'s Br. at "Comparative Weight Analysis."
This is a fair argument, especially given Regulation 20 C.F.R. § 404.1527's admonishment to weigh medical opinions the same, regardless of their source. Upon analysis, however, it fails. By definition, medical experts do not examine applicants nor do they order diagnostic tests. Consequently, it is impossible for them to express opinions based on their clinical observations or laboratory findings. As ME Murphy stated at the hearing:
The regulation states:
"Regardless of its source, we will evaluate every medical opinion . . . [and] consider all of the following factors in deciding the weight we give to any medical opinion."20 C.F.R. § 404.1527 (d) (2004).
"I am here to look specifically at objective medical evidence and medical impairments that are supported by objective medical evidence."
Tr. 50. Of necessity, his review was limited to an examination of the evidence of record.
Second, neither an administrative law judge nor a medical expert has a burden of proof regarding residual functional capacity. That burden, instead, rests with the applicant. Medical experts assist judges in evaluating evidence that plaintiffs produce. They do not generate independent evidence, and to require them to do so would amount to an improper shifting of the burden of proof.
Finally, and even assuming arguendo that the administrative scheme involves an imbalance occasioned by a more lenient standard for medical expert opinion, there are adequate safeguards to prevent unjust results. Due Process concerns are protected by substantial evidence review, which provides complete relief to applicants aggrieved by decisions based on medical expert opinion lacking evidentiary support.
In sum, there is no basis for reversing the Commissioner's decision for lack of application of correct principles of law.
B. Was ALJ Obligated to Recontact Treating Physicians for Additional Information?
While administrative law judges generally do not shoulder the burden of proof, they have a transcendent duty to fully and fairly develop facts relevant to a claim for benefits. Kane v. Heckler, 731 F.2d 1216, 1219-1220 (5th Cir. 1984); 42 U.S.C. 405(g); 20 C.F.R. 410.640 (2004). Failure to carry out this duty constitutes error precipitating a decision not informed by sufficient facts. A decision so tainted is unsupported by substantial evidence. James v. Bowen, 793 F.2d 702, 704 (5th Cir. 1986) (quoting Kane v. Heckler, 731 F.2d at 1219); see also Brock v. Chater, 84 F.3d 726 (5th Cir. 1996); Davis v. Califano, 599 F.2d 1324 (5th Cir. 1979); McGee v. Weinberger, 518 F.2d 330 (5th Cir. 1975).
When existing medical evidence is inadequate to make a disability determination, regulations impose a duty on the Commissioner to develop the record by recontacting a claimant's medical sources or referring the claimant for a consultative examination. Social Security Ruling 96-2p amplifies this requirement further by stating that additional evidence or clarifying reports may be necessary when the treating source's medical opinion appears lacking or inconsistent. See Social Security Ruling 96-2p, 61 F.R. 33491 (July 6, 1996). Failure to recontact a treating source or refer a claimant for a consultative examination may therefore constitute error in some circumstances.
Social Security regulation 20 C.F.R. § 404.1512 states:
(e) Recontacting medical sources. When the evidence we received from your treating physician or psychologist or other medical source is inadequate for us to determine whether you are disabled, we will need additional information to reach a determination or a decision. To obtain the information, we will take the following actions.
(1) We will first recontact your treating physician or psychologist or other medical source to determine whether the additional information we need is readily available. We will seek additional evidence or clarification from your medical source when the report from your medical source contains a conflict or ambiguity that must be resolved, the report does not contain all the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques. . . .
(f) Need for consultative examination. If the information we need is not readily available from the records of your medical treatment source, or we are unable to seek clarification from you medical source, we will ask you to attend one or more consultative examinations at our expense.20 C.F.R. § 404.1512(e) — (f) (2004).
Here, however, plaintiff has not shown or argued that the existing administrative record was insufficient to make an informed disability determination, or that treating sources' medical opinions were lacking or inconsistent. Moreover, plaintiff has not shown or argued that additional evidence would have been produced had ALJ Williams recontacted plaintiff's treating physicians or that the additional evidence might have led to a different decision. Rather, plaintiff's argument essentially is a variation on the theme of her earlier argument that ultimately, treating physician opinion must prevail. Plaintiff contends:
"The ALJ cannot reject the opinion of a treating source for an alleged lack of objective medical findings in the record and then accept the opinion of a non-examining physician whose testimony must be based on the same record. If the record were insufficient to support an opinion, the ALJ had a duty to obtain additional evidence from the treating source [citing Newton]."
Pl.'s Br. at "Comparative Weight Analysis."
This argument also is flawed. Plaintiff's treating physicians' failure to develop or cite clinical and laboratory evidence in support of their interrogatory answers provided just cause for ALJ Williams to discount or reject their generous opinions regarding plaintiff's residual functional capacity. Such omissions, however, do not compel a conclusion that there was insufficient evidence to permit an informed decision.
The record evidence includes longitudinal records from plaintiff's treating sources, spanning four years from October, 1997, through November, 2001. See n. 6, supra, and functional assessments from plaintiff's treating physicians, submitted by plaintiff's attorney two days prior to the administrative hearing. See Tr. 233, 238. It contained plaintiff's subjective testimony and testimony from a vocational expert and a medical expert. Objective medical evidence showed that plaintiff's eczema (a) waxes and wanes; (b) does not affect plaintiff's palms or soles of her feet; (c) is controlled by medication; and (d) causes no limitation arising from skin lesions. As for back pain, there is evidence of moderate degenerative disc disease, but normal lumbar studies. As for right arm pain, there was history of a fracture of the right radius. The fracture line was obliterated through corrective surgery, and plaintiff was discharged while doing well.
Based on this evidence, Dr. Murphy opined that plaintiff could sit, stand or walk for six hours in an eight hour workday at two hour intervals, could lift ten pounds frequently and 20 pounds occasionally, but would not be able to work in temperature or moisture extremes, and should avoid working at heights, crawling, or working with vibrations. She is capable of stooping and crouching only occasionally.
In ALJ Williams's view, the record, as a whole was adequate to make an informed decision. Consequently, there was no requirement that he recontact treating physicians. This alleged substantial evidence error does not constitute a basis for reversing the Commissioner's decision.
VII. RECOMMENDATION
Because none of plaintiff's points of error should be upheld, the Commissioner's decision should be affirmed.
VII. OBJECTIONS
Objections must be: (1) specific, (2) in writing, and (3) served and filed within ten days after being served with a copy of this report. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 1(a), 6(b), and 72(b).
A party's failure to object bars that party from: (1) entitlement to de novo review by a district judge of proposed findings and recommendations, Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988), and (2) appellate review, except on grounds of plain error, of unobjected-to factual findings and legal conclusions accepted by the district court, Douglass v. United Servs. Auto. Ass'n., 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).