Barbee v. Barnhart

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 29, 2002
• Docket: 02-10283
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-10283 Summary Calendar

CURTIS BARBEE,

Plaintiff-Appellant,

versus

JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 7:00-CV-7-AH -------------------- October 29, 2002 Before JONES, STEWART and DENNIS, Circuit Judges.

PER CURIAM:*

Curtis Barbee appeals the district court’s judgment for

the Commissioner in his action pursuant to 42 U.S.C. § 405(g) for

review of the administrative law judge’s (ALJ) decision denying him

disability and supplemental security income benefits. Barbee

argues that the ALJ’s finding that his limitations did not prevent

him from performing his past relevant work is not supported by

substantial evidence and rests on legal error.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 02-10283 -2-

Barbee argues that the ALJ erred in his assessment of

residual functional capacity, specifically with respect to the

weight accorded the various medical opinions. Barbee contends that

the ALJ ignored the opinions of the state agency physicians and of

Drs. Bradley, Nanjundasamy, and Morris as to Barbee’s mental RFC,

and the physical RFC assessments by Drs. Mitchell and Evans.

With regard to his mental abilities, Barbee points to an

August 1992 report from psychologist Robert Bradley, in which Dr.

Bradley stated that Barbee would have difficulty in any training

program which required the use of academic abilities and “would

probably have difficulty competing successfully in the job market.”

This Court has held that statements from medical professionals

regarding vocational issues are not authoritative. See Loya v.

Heckler, 707 F.2d 211, 214 (5th Cir. 1983).

Dr. Leon Morris noted that personality testing showed “an

extreme tendency to fabricate or exaggerate symptoms of mental

illness” and opined that Barbee was malingering in an attempt to

obtain Social Security benefits. Dr. Morris determined that

Barbee’s ability to understand, remember and carry out complex job

instructions was fair, that his ability to understand, remember and

carry out detailed but not complex job instructions was good, and

that his abilities for simple job instructions was very good. The

ALJ’s finding that Barbee could perform work which does not involve

more than detailed to mildly complex job instructions is supported

by substantial evidence. No. 02-10283 -3-

Barbee’s argument that the ALJ should have given the

opinion of Dr. Bradley more weight is without merit; the ALJ was

within his discretion to rely on Dr. Morris’s report and

conclusions. See Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir.

1987) (an ALJ may properly rely upon the opinion of an examining

physician and is free to choose among the conclusions of examining

physicians).

Barbee argues that the ALJ erred by not discussing the

opinions of state agency physicians Dr. Gilliland and Hillman in

violation of Social Security Ruling (SSR) 96-6p, which is binding

on the ALJ. Barbee correctly notes that the ALJ did not

specifically discuss the report of non-examining physician Dr.

Gilliland in his decision. However, procedural perfection in

administrative proceedings is not required, and a judgment should

not be vacated unless the substantial rights of a party have been

affected. See Anderson v. Sullivan, 887 F.2d 630, 634 (5th Cir.

1989). Procedural improprieties constitute a basis for remand only

if such improprieties cast into doubt the existence of substantial

evidence to support the ALJ’s decision. Morris v. Bowen, 864 F.2d

333, 335 (5th Cir. 1988).

In the two district court cases cited by Barbee, the

courts did not conduct an analysis of prejudice. In contrast, the

district court in Pigram v. Barnhart, 2002 WL 187500 (N.D. Ill.

Feb. 6, 2002) at * 7-8, applied a harmless error standard and

determined that the failure to discuss the state agency physician’s No. 02-10283 -4-

report was harmless and that inclusion of the opinion would not

have changed the final result.

The ALJ thoroughly discussed Barbee’s alleged mental

impairment in his decision and properly relied upon the more recent

reports of physicians who actually examined him. Barbee’s claim

that discussing the report of Dr. Gilliland would have changed the

outcome of the ALJ’s assessment is contrary to precedent which

favors opinions from examining physicians over that of non-

examining physicians. See Newton v. Apfel, 209 F.3d 448, 456-57

(5th Cir. 2000) (cannot rely on opinion of non-examining physician

over that of treating specialist); Villa v. Sullivan, 895 F.2d

1019, 1024 (5th Cir. 1990) (ALJ may rely on a non-examining

physician’s assessment only where it does not contradict the

examining physician); 20 C.F.R. § 404.1527(d)(1) (“Generally, we

give more weight to the opinion of a source who has examined you

than to the opinion of a source who has not examined you.”).

Barbee has not demonstrated any harm resulting from the

lack of a specific discussion of the non-examining state agency

physician’s report in the ALJ’s decision. The ALJ relied upon a

report of an examining physician, which is entitled to more

evidentiary weight than Dr. Gilliland’s as a matter of law. See

Social Security Ruling 96-6p (the opinions of state agency

consultants are given weight only insofar as their opinions remain

supportable in light of evidence which was not before the state

agency). No. 02-10283 -5-

With regard to his physical limitations, Barbee argues

that the ALJ erred by not crediting the physical limitations

assessed by Dr. Mitchell and Dr. Evans. Barbee argues that the

ALJ’s decision does not mention or discuss either of these

assessments, neither of which supports the ALJ’s physical RFC

finding of ability to perform medium work. Barbee asserts that

there are no contradicting assessments from examining sources, and

that the ALJ’s physical RFC finding is unsupported by substantial

evidence.

Dr. Mitchell completed a functional assessment on July

30, 1992, in which he determined that Barbee could not lift 50

pounds. Dr. Mitchell referred Barbee to Dr. Lim for further

neurologic evaluation. The ALJ noted that Dr. Lim’s examination of

Barbee showed normal motor strength, normal reflexes, no sensory

disturbance, normal straight leg raising, and normal gait. Barbee

was evaluated again for back pain in July 1993 by Dr. Caras, which

examination the ALJ discussed. Barbee showed a slight degree of

tenderness in his lower lumbar spine and a slight decrease in his

range of motion in his spine. X-rays of the lumber spine were

normal, and Dr. Caras stated his impressions as “[b]ack pain of

undetermined etiology with minimal neurological findings.” Dr.

Caras’ interpretation was that Barbee had “subjective complaints

that are out of proportion to his objective findings. It is

possible that he may have some disc involvement but further more

detailed neurological studies would be necessary to determine No. 02-10283 -6-

this.” There is no evidence in the record of such further testing

being conducted.

In August 1997, Dr. Evans noted that Barbee’s cervical

spine films and right shoulder films were normal, and his lumber

spine films showed some mild degenerative changes but were

otherwise normal. Dr. Evans completed a medical assessment of

Barbee’s ability to do work-related activities, and determined that

his ability to lift was impaired, based on the medical finding that

“Pain when lifting reported.” His ability to stand and walk was

also impaired based on “Pain when standing and walking. Back and

right leg pain.” Sitting was not affected. Dr. Evans made the

assessment that Barbee could never climb, balance, stoop, crouch,

kneel, or crawl, based on the medical findings that it would

“Require too many movements and position changes.”

It is true that the ALJ did not discuss Dr. Mitchell’s

and Dr. Evans’ functional assessments. The ALJ did discuss all of

the medical findings relating to Barbee’s alleged physical

limitations. Dr. Mitchell cited no particular medical findings in

support of his assessment that Barbee could not lift 50 pounds. To

the extent that the ALJ erred by not considering Dr. Mitchell’s

functional assessment report, the error does not affect Barbee’s

substantial rights, because Dr. Mitchell’s functional assessment is

not supported by the objective medical evidence provided in the two

contemporaneous examination reports of Dr. Lim and Dr. Caras which

the ALJ properly relied upon. No. 02-10283 -7-

With regard to the August 1997 report of Dr. Evans, the

language of the report itself shows that the limitations noted were

not based upon objective medical findings, but rather on Barbee’s

own complaints of pain. The ALJ is free to reject the opinion of

any physician when the evidence supports a contrary conclusion.

Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987). The ALJ may

give no weight to the physician’s opinion if it is not supported by

the objective medical evidence. Greenspan v. Shalala, 38 F.3d 232,

237 (5th Cir. 1994). The ALJ’s omission of discussion of Dr.

Evans’ functional assessment does not cast into doubt the existence

of substantial evidence and thus did not affect Barbee’s

substantial rights.

None of Barbee’s arguments demonstrate that the

Commissioners’s decision is not supported by substantial evidence.

AFFIRMED.