Barbee v. Barnhart

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this opinion should not be published and is not precedent except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
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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
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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
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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
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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
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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.