Opinion
No. SA-02-CV-1100-RF
November 17, 2003
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
BEFORE THE COURT is the Report and Recommendation of the United States Magistrate Judge Pamela Mathy, filed September 26, 2003. The Magistrate Judge recommended to deny Plaintiff's motion for summary judgment and to affirm the Social Security Commissioner's ("Commissioner") decision. Plaintiff filed objections to the Report and Recommendation on October 14, 2003. Plaintiff did not seek leave of Court to file objections beyond the ten-day statutory limit, The Court, in its discretion, will consider the objections nonetheless. After due consideration, the Court is of the opinion that Plaintiff's objections should be REJECTED and that the Magistrate Judge's Report and Recommendation should be ADOPTED IN ITS ENTIRETY.
I. Background
Plaintiff, Felipe Martinez, filed an application for disability insurance benefits and supplemental income benefits on February 14, 2000, alleging disability as of December 31, 1997. In the disability reports accompanying his application, Plaintiff identified post-traumatic stress disorder, diabetes, high blood pressure, shaking, knee pain, and depression, as the conditions leading to his inability to work. Plaintiff's application was denied initially and upon reconsideration. Subsequently, an Administrative Law Judge ("ALJ") held a hearing to determine Plaintiff's eligibility for Social Security benefits on July 10, 2001. Plaintiff was represented by counsel at this hearing. Thereafter, on November 28, 2001, the ALJ issued a written decision in which he concluded that Plaintiff was not disabled within the meaning of the Social Security Act. The Appeals Council subsequently denied Plaintiff's request for review of the ALJ's decision, thus making the ALJ's decision the final decision of the Commissioner. Plaintiff now seeks judicial review from this unfavorable decision in federal court pursuant to 42 U.S.C. § 405(g).
Transcript at 11, 76-79, 83.
Id. at 52-58, 60-63.
Id. at 21-51.
Id. at 11-18.
See id. at 4-6.
II. Discussion
A. Standard of Review for Report and Recommendation
The Court reviews de novo a Magistrate Judge's Report and Recommendation if a party files specific objections within ten days of service. The Local Court Rules for the Western District of Texas require that the "written objections . . . specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections." Thus, the Court need not consider objections that are frivolous, conclusive, or general in nature. If there are no specific objections to a Magistrate Judge's Report and Recommendation, the District Court is to review it for findings and conclusions that are either clearly erroneous or contrary to law. In the instant case, Plaintiff filed specific objections to the Magistrate Judge's Report and Recommendation, thus warranting consideration by the Court. Because Defendant has not objected to the timeliness of Plaintiff's objections, the Court will consider the objections, despite the fact that they were untimely filed.
W.D.TEX. R. 4(b) at App. C ("Assignment of Duties to United States Magistrate Judges").
Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
B. Standard of Review in Social Security Appeals
The Court's review of the Commissioner's denial of disability benefits is limited to determining whether (1) the decision is supported by substantial evidence, and (2) the Commissioner applied the proper legal standards to evaluate the evidence. The Commissioner's final decision must be upheld if it is supported by substantial evidence. Substantial evidence is more than a scintilla, less than a preponderance, and such that a reasonable mind might accept as adequate to support a conclusion. A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings exist to support the Commissioner's decision. The Court may not reweigh the evidence, try the issues de novo, or substitute its judgment for that of the Commissioner. Conflicts in evidence are for the Commissioner to resolve, not the courts. Despite its limited function, the court must scrutinize the record in its entirety to determine the reasonableness of the decision reached and whether substantial evidence exists. Four elements are weighed to determine whether substantial evidence supports the Commissioner's determination: (1) objective medical facts, (2) diagnoses and opinions of treating and examining physicians, (3) the claimant's subjective evidence of pain and disability, and (4) the claimant's age, education and work experience.
Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). See also Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995); Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993).
See 42 U.S.C. § 405(g).
Boyd, 239 F.3d at 704.
Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988); Abshire v. Bowen, 848 F.2d 638, 640 (5th Cir. 1988).
Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000); Spellman, 1 F.3d at 360; Martinez, 64 F.3d at 173.
Carey, 230 F.3d at 135; Patton v. Schweiker, 697 F.2d 590, 592 (5th Cir. 1983).
Villa v. Sullivan, 895 F.2d 1019, 1022 (5th Cir. 1990).
Martinez, 64 F.3d at 174.
C. Analysis
To qualify for disability benefits under the Social Security Act, a plaintiff must initially establish that he is disabled by showing that: (1) he lacks that ability to engage in a substantial gainful activity, and (2) his disability has lasted or maybe expected to last at least 12 months. If the plaintiff succeeds, the burden then shifts to the Commissioner to show that the plaintiff is capable of performing some type of alternate work. To determine whether a claimant qualifies as disabled under the Act, the Commissioner uses the following sequential, five-step inquiry: (1) Is the claimant engaged in substantial gainful activity?; (2) Does the claimant have a severe impairment?; (3) Does the impairment meet or equal a listed impairment?; (4) Does the impairment prevent the claimant from doing past relevant work?; and (5) Does the impairment prevent the claimant from doing other work? Claimant bears the burden of proof under the first four parts of the inquiry. If at any step the Commissioner finds that the claimant is or is not disabled, the inquiry ends.
20 C.F.R. § 404.1505 416.905; see also Taylor v. Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986).
Taylor, 782 F.2d at 1298. See also 42 U.S.C. § 1382c(a)(3)(B).
20 C.F.R. § 404.1520 416.920.
Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
In this case, the ALJ conducting the hearing on behalf of the Commissioner found at step one that the alleged date of disability onset coincided with the date plaintiff's contract to paint houses for a real estate agency ended and that plaintiff had low earnings in 1998, none in 1999 and $10,914.54 from My to December 2000. Thus, the ALJ determined that plaintiff engaged in gainful employment in 2000 as a house painter, after the alleged onset of disability. At step two, the ALJ found severe impairment due to post-traumatic stress disorder ("PTSD"), major depressive disorder, borderline personality disorder, diabetes mellitus, diabetic neuropathy, hypertension, and hyperlipidemia. The ALJ determined at step three that plaintiff's impairments, either taken individually or as a combination, did not meet or equal a listed impairment. At step four, the ALJ determined that plaintiff was able and actually had performed past relevant work as a house contract painter. The ALJ accepted as credible the testimony of an impartial vocational expert, stating that "an individual with claimant's residual functional capacity . . . could return to his past relevant work as a contract/self-employed house painter." Based upon the ALJ's acceptance of this testimony, the ALJ found plaintiff able to return to past relevant work and not disabled.
Tr. at 12.
Id.
Id. at 15.
Id.
Id. at 17.
Id.
Id.
Plaintiff appealed the decision of the ALJ on one ground, alleging that because the ALJ applied an incorrect standard to determine plaintiff's residual functional capacity, the residual functional capacity findings are not supported by substantial evidence. The Magistrate Judge found that despite these concerns, the ALJ's decision was supported by substantial evidence and comported with proper legal standards. Plaintiff now asks this Court to re-review his claims on essentially the same ground, objecting to the Magistrate Judge's finding that the ALJ used the proper standard in defining "moderately limited" as "satisfactory" with respect to the analysis of residual functional capacity.
Pl's Memo in Support of Mot. for Summ. J. (Docket No. 15), at 3.
Plaintiff argues in both his initial briefing and in his objections to the Magistrate Judge's recommendation that the ALJ inaccurately defined "moderately limited" as "satisfactory," a definition "not supported by any case law, regulation, statute, or reasoning." Instead, plaintiff claims, the ALJ should have defined "moderately limited" as the "ability to function in this area is seriously limited but not precluded." Plaintiff submits in support of this argument the definition of "fair" provided on Form TRC-945, the Medical Assessment of Ability to Do Work-Related Activity (Mental). Form TRC-945 defines "fair" as the "ability to function in this area is seriously limited but not precluded."
Id. at 6.
Plaintiff points to the Medical Assessment of Ability to Do Work-Related Activity (Mental) form's definition of "fair." Pl's Memo in Support of Mot. for Summ. J., ex. A ("Form TRC-945").
Id.
Plaintiff's medical consultants, in fact, used ratings provided on a supplement mental assessment form ("Form 4734") used by state agency consultants. Form 4734 provides that "a moderate limitation would be one that is significant but not marked." The options available on Form 4734 include "not significantly limited," "moderately limited," "markedly limited," "no evidence of limitation," and "not ratable." Plaintiff's assessment revealed all categories at either the "not significantly limited" level or the "moderately limited" level.
Tr. at 126-28 (Form SSA-4734-F4-SUP; OMB NO. 0960-0431).
Pl's Memo in Support of Mot, for Summ. J., at 9.
Based upon Form 4734's language, Plaintiff contends that "a significant limitation would seem synonymous with a serious limitation" and that given this definition, the ALJ should have used the definition of "fair" as provided on Form TRC-945 in this case. Plaintiff claims that based upon the application of that definition, the ALJ should have found that the combined effect of numerous moderate limitations precludes work and supports a finding of disability. In addition, Plaintiff offers other definitions for "moderately limited" based upon case law.
Id.
Id. at 9-10, One definition for "moderately limited" is that the claimant has some loss of ability in the activity listed for up to one-third of the time. Plaintiff cites in support Morales v. Apfel, 225 F.3d 310, 314, n. 4 (3d Cir. 2000) and other cases. Another proffered definition is that moderate falls between "occasional" and "frequent." Plaintiff cites Fitts v. Massanari, 2001 WL530475 (S.D. Ala. 2001). Plaintiff also cites to Webster's Dictionary definition of "moderate." Id. at 9-10.
The ALJ offered two definitions for "moderately limited." The first, "the ability to function in that particular area is otherwise known as fair, and it means that the person can perform the activity satisfactorily some of the time," was described by the ALJ as the "more extreme meaning of the word moderate." The second definition considered was that "the person has a severe limitation, but is still able to do the function satisfactorily." In interpreting these two definitions, the vocational expert testified that under the first "more extreme" definition, a person would be able to paint houses part-time. Under the second definition, a person would be capable of full-time employment. Based upon the vocational expert's testimony, the ALJ concluded that Plaintiff would be able to perform his work of house painting as an independent contractor or self-employed painter.
Tr. at 43.
Id. at 43-44.
Id. at 44.
Id.
Id. at 18.
The Magistrate Judge found, and upon independent review this Court agrees, that the vocational expert's testimony reflected that under either of the above definitions of "moderately limited," an independent contractor for house painting would be able to perform the job. Moreover, the decision of the ALJ did not necessarily rest one definition over the other. The Court does not find that the ALJ relied on an incorrect standard, even if the ALJ defined "moderately limited" as the ability to function satisfactorily. The Social Security regulations do not define "moderate." The determination of Plaintiff's incapacity derived from the results marked on a form promulgated by the Social Security Administration. That form includes a category for "markedly limited," a term defined by Listing 12.00. Based upon that definition, a moderate limitation must be less than a serious one, for reasons beyond the plain difference between the words, because a marked limitation is one greater than moderate and seriously interferes with functioning.
The Magistrate Judge noted that Listing 12.00 of the Social Security regulations provides:
Where we use "marked" as a standard for measuring the degree of limitation, it means more than moderate but less than extreme. A marked limitation may arise when several activities or functions are impaired, or even when only one is impaired, so long as the degree of limitation is such as to interfere seriously with your ability to function independently, appropriately, effectively, and on a sustained basis. 20 C.F.R. pt. 404, subpt. P, app. 1, listing 12.00C.
See Tr. at 126 (Form SSA-4734-FA-SUP).
Plaintiff argues that a legal definition for "moderately limited" is that the individual "is unable to perform the task up to a third of the time." The cases cited by Plaintiff do not provide guidance in the instant analysis because the cited district court cases both rely upon the Third Circuit's opinion in Morales v. Apfet and the treatment of the definition of "moderately limited" in Morales is provided by an expert's testimony. The definition used in Morales was relevant to that particular case, given its use by an expert witness in the proceedings below. The Morales court did not endorse that definition as a legal standard to apply to future cases in which the term "moderately limited" would be called into question. Nor did the Morales court assign any legal meaning whatsoever to that definition, other than is meaning within the history of Mr. Morales' own claim. The Court agrees with the Magistrate Judge who noted that because the Third Circuit reversed the ALJ's decision on the grounds that the ALJ ignored expert opinions that claimant was "seriously limited," the mention of "moderately limited" indicates that the Third Circuit views those two terms differently. Based upon the foregoing, the Court will not disturb the ALJ's conclusion that Plaintiff is not disabled under the Social Security Act.
Pl's Memo in Support of Mot. for Summ. J, at 9.
Schuh v. Commissioner of Social Sec., 2003 WL21087132 (D.Del. 2003); Walls v. Barnhart, 2002 485641 (E.D. Pa. 2002). Both cases dealt with forms like those in the present case. In Schuh, the ALJ found that claimant was not disabled based on expert testimony that claimant could work despite a mental restriction. In Walls, the ALJ denied disability, and the district court reversed due to insufficient evidence and failure to give proper weight to contrary evidence. Neither case found that the claimant would be disabled with a moderate limitation, as Plaintiff would suggest.
225 F.3d 310 (3d Cir. 2000).
Id. at 314.
Id. at 11-18.
III. Conclusion
Accordingly, the Court ORDERS that the Report and Recommendation be ADOPTED IN ITS ENTIRETY.
It is further ORDERED that Plaintiff's motion for summary judgment be DENIED.
It is further ORDERED that the Commissioner's decision be AFFIRMED.