The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NOMA ABEL CIVIL ACTION
VERSUS NO. 18-7715
SOCIAL SECURITY ADMINISTRATION SECTION “B”(3)
ORDER & REASONS
Considering Plaintiff Noma Abel’s “Memorandum in Support of
Plaintiff’s Objections to Magistrate Judge’s Report
and Recommendations” (Rec. Doc. 14),
IT IS ORDERED that objections are OVERRULED and the
Magistrate Judge’s report and recommendations are ADOPTED as the
opinion of the court, (Rec. Doc. 13).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On March 19, 2015, Plaintiff Noma Abel filed an application
for disability insurance benefits (DIB) and supplemental security
income (SSI) alleging a disability onset date of November 7, 2013.
Rec. Doc. 13 at 1. On June 1, 2017, the Administrative Law Judge
(ALJ) determined that Plaintiff is not disabled. Rec. Doc. 13 at
2. The ALJ found that Plaintiff has severe impairments of affective
disorder, cervical degenerative disc disease, and lumbar
degenerative disc disease, but that these impairments nor a
combination of such fail to meet or medically equal a listed
impairment under the regulations. Id.
Plaintiff sought review from the Appeals Council; however,
the Appeals Council denied Plaintiff’s request on June 22, 2018.
Id. Plaintiff then filed the instant civil action, in which all
parties subsequently filed cross motions for summary judgment. Id.
at 15. The motions, administrative record, and Magistrate’s report
and recommendation have been reviewed along with applicable law
and regulations. Rec. Doc. 7, 13, and 14.
LAW AND ANALYSIS
A district court, when reviewing a disability claim, is limited
to determining whether there is substantial evidence in the record
to support the final decision of the Commissioner as trier of fact,
and whether the Commissioner applied the appropriate legal
standards to evaluate the evidence. Carey v. Apfel, 230 F.3d 131
(5th Cir. 2000) (citing Brown v. Apfel, 192 F.3d 492, 496 (5th
Cir. 1999)). If the Court finds substantial evidence to support
the decision, then it must uphold the decision. Substantial
evidence is that evidence which a “reasonable mind might accept as
adequate to support a conclusion.” Carey, 230 F.3d at 135 (quoting
Villa v. Sullivan, 895 F.2d 1019, 1021-22 (5th Cir. 1990)). It is
more than a scintilla, but may be less than a preponderance. Id.
The court considers four elements of proof when determining whether
there is substantial evidence of disability: (1) objective medical
facts, (2) diagnoses and opinions of treating and examining
physicians, (3) claimant’s subjective evidence of pain and
disability, and (4) claimant’s age, education, and work history.
Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995).
While the court must review the whole record to determine if
substantial evidence exists, it cannot reweigh the evidence in the
record, try the issues de novo, or substitute its judgment for the
Commissioner’s, even if the evidence weighs against the
Commissioner’s decision. The administrative law judge can make any
findings that are supported by substantial evidence. Brown, 192
F.3d at 496; Hohmann, 2018 U.S. Dist. LEXIS 139426 at *9.
“To be considered disabled, a claimant must show that he is
unable to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.” Hohmann, 2018 U.S. Dist. LEXIS 139426 at *9-10 (internal
quotation marks omitted). To determine if an impairment prevents
a person from engaging in substantial gainful activity, a five-
step analysis is employed. First, the claimant must not be
presently working at any substantial gainful activity. Second, the
claimant must have an impairment or combination of impairments
that are severe. Third, the claimant’s impairment must meet or
equal an impairment listed in the appendix to the regulations.
Fourth, the impairment must prevent the claimant from returning to
his past relevant work. Fifth, the impairment must prevent the
claimant from doing any relevant work, considering the claimant’s
residual functional capacity, age, education, and past work
experience. The claimant has the burden of proof under the first
four parts of the analysis to show that he or she is disabled. If
the claimant is successful, then the burden shifts to the
Commissioner at step five to show that the claimant is capable of
performing other gainful employment. Shave v. Apfel, 238 F.3d 592,
594 (5th Cir. 2001); Hohmann, 2018 U.S. Dist. LEXIS 139426 at *10.
a. The ALJ’s Residual Functional Capacity (RFC) finding
incorporated all of plaintiff’s mental limitations
The ALJ found that plaintiff did not have an impairment or
combination of impairments which met or medically equaled the
severity of an impairment listed in the appendix to the
regulations. Rec. Doc. 13 at 14. The ALJ concluded that plaintiff
had affective disorder, cervical degenerative disc disease, and
lumbar degenerative disc disease. Rec. Doc. 7-2 at 13.
Additionally, the ALJ found:
All impairments other than those enumerated above,
alleged and found in the record, are non-severe or not
medically determinable as they have been responsive to
treatment, cause no more than minimal vocationally
related limitations, have not lasted or are not expected
to last at a ‘severe’ level for a continuous period of
12 months, are not expected to result in death, or have
not been properly diagnosed by an acceptable medical
source.
Rec. Doc. 7-2 at 14. The ALJ found that as of December 12, 2018,
no 12-month period existed during which plaintiff’s residual
capacity was not valid. Rec. Doc. 7-2 at 18. Further, after
consideration of the evidence, the ALJ found “claimant’s medically
determinable impairments could reasonably be expected to cause
some of the alleged symptoms; however, the claimant’s statements
concerning the intensity, persistence and limiting effects of
these symptoms are not entirely consistent with the medical
evidence and other evidence in the record for the reasons explained
in this decision.” Rec. Doc. 7-2 at 18.
Plaintiff argues that his irritability and agitation were not
incorporated into his assessed RFC. However, the ALJ specifically
included “all impairments other than those enumerated above,
alleged and found in the record” in her assessment of the
plaintiff’s mental limitations. Rec. Doc. 7-2 at 13. Therefore,
this argument is meritless.
b. Dr. Leia Frickey does not qualify as a treating source
and her opinion is inconsistent with the record
In the instant case, the Magistrate Judge found that Dr.
Frickey did not qualify as a treating source. Rec. Doc. 14 at 6.
A doctor is a treating source when his interaction with a patient
creates an “ongoing treatment relationship.” See 20 C.F.R. §§
404.1502, 416.902. A treating source physician’s medical opinion
carries more weight because “they are likely to be the medical
professionals most able to provide a detailed, longitudinal
picture of [plaintiff’s] medical impairment.” 20 C.F.R. §§
404.1527(c)(2); 416.927(c)(2) (emphasis added). Here, Dr. Frickey
evaluated the plaintiff six times between November 2013 and April
2014. Rec. Doc. 13 at 6. However, the relevant time period that
the Commissioner considered was three and a half years. Rec. Doc.
13 at 6. As such, these encounters did not create the “ongoing
treatment relationship” for a longitudinal picture that is
necessary to qualify Dr. Frickey as a treating source. Id.
Plaintiff further contends that the Magistrate Judge erred in
finding that Dr. Leia Frickey’s opinion was inconsistent with the
record. Rec. Doc. 14 at 1. Dr. Frickey’s opinion is inconsistent
with subsequent examinations in the record. Specifically, Dr.
Frickey noted that plaintiff had full range of motion in his
cervical spine, some tenderness, and some limitation in range of
motion in his lumbar spine. Rec. 7-7 at 372-73. Dr. Frickey further
noted that the plaintiff did not have any work limitations, yet
five months after the plaintiff’s motor vehicle accident Dr.
Frickey stated that plaintiff “could not lift, bend, or stoop
whatsoever.” Rec. Doc. 7-7 at 358.
Dr. Frickey’s examination notes did reveal some pain, aching
joints, and some limitation in range of motion, but fail to support
her extreme opinion as to the plaintiff’s medical condition. Rec.
Doc. at 365-75. Therefore, Dr. Frickey directly contradicted her
prior statements that the plaintiff did not have any work
limitations. Rec. Doc. at 7-7 at 367, 368, 374. Further, “The ALJ
is free to reject the opinion of any physician when the evidence
supports a contrary conclusion.” Martinez v. Chater, 64 F.3d 172,
176 (5th Cir. 1995). Thus, the Magistrate Judge did not err in her
opinion in finding that Dr. Frickey’s opinion was inconsistent
with the record.
Substantial evidence of record and applicable law support the
Magistrate Judge’s analysis as well as the ALJ’s findings.
Therefore, the instant social security appeal is dismissed.
New Orleans, Louisiana this 28th day of February, 2020.
__________________________________
SENIOR UNITED STATES DISTRICT JUDGE