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Case 3:12-cv-00398-CWR-FKB Document 21 Filed 09/19/13 Page 1 of 4









Cause No. 3:12-CV-398-CWR-FKB



Pending before the Court is the Report and Recommendation of the United States
Magistrate Judge (hereinafter “Report and Recommendation”), Docket No. 18, to deny Plaintiff
Olene Garner’s Motion for Summary Judgment, Docket No. 10, and grant Defendant’s Motion to
Affirm the Decision of the Commissioner, Docket No. 15. Plaintiff has objected, Docket No. 19,
and Defendant has replied, Docket No. 20.

Standard of Review

When a party objects to a Report and Recommendation, this Court “shall make a de novo
determination of those portions of the report or specified proposed findings or recommendations
to which objection is made.” 28 U.S.C. § 636(b)(1)(C); see Longmire v. Guste, 921 F.2d 620,
623 (5th Cir. 1991). “On judicial review, the ALJ’s determination that a claimant is not disabled
will be upheld, if the findings of fact upon which it is based are supported by substantial
evidence on the record as a whole, and if it was reached through the application of proper legal
standards.” Loza v. Apfel, 219 F.3d 378, 389 (5th Cir. 2000) (citations omitted). “Substantial
evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Audler v. Astrue, 501 F.3d 446, 447 (5th Cir.
2007) (citation and quotation marks omitted). “In applying the substantial evidence standard, we
scrutinize the record to determine whether such evidence is present.” Greenspan v. Shalala, 38
F.3d 232, 236 (5th Cir. 1994) (citation omitted). “We may not reweigh the evidence or substitute
our judgment for that of the Commissioner.” Audler, 501 F.3d at 447 (citation omitted). Stated
another way, notwithstanding the magistrate judge’s conclusions, as a reviewing court, this Court
“limits itself to two questions: ‘(1) whether there is substantial evidence in the record to support
the decision and (2) whether the decision comports with relevant legal standards.’” Nichols v.
Astrue, No. 3:10cv420, 2012 WL 1802462, at *2 (S.D. Miss. May 17, 2012) (citations omitted).


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This Court is obligated to afford the administrative law judge’s decision with the same deference
as did the magistrate judge.

While undertaking this review, “the Court is mindful of the beneficial purpose of the
Social Security Act and its corresponding administrative regulations and rulings. Brown v.
Comm'r of Soc. Sec., 3:10-CV-268-CWR-FKB, 2011 WL 5981007 (S.D. Miss. Nov. 29, 2011)
(citing Savo v. Astrue, No. 3:10-cv-1612, 2011 WL 5025488, *2 (D. Conn. Oct. 21, 2011)).

II. Discussion
Having carefully reviewed the record, the Report and Recommendation, and the relevant
pleadings, the Court will adopt the Report and Recommendation for the reasons stated therein,
with the following serving as a supplement to the Report and Recommendation’s step three

In evaluating a disability claim, the Commissioner conducts a five-step
sequential analysis to determine whether (1) the claimant is presently
working; (2) the claimant has a severe impairment; (3) the impairment
meets or equals an impairment listed in appendix 1 of the social security
regulations; (4) the impairment prevents the claimant from doing past
relevant work; and (5) the impairment prevents the claimant from doing
any other substantial gainful activity. If, at any step, the claimant is
determined to be disabled or not disabled, the inquiry is terminated. The
claimant bears the burden of showing she is disabled through the first four
steps of the analysis; on the fifth, the Commissioner must show that there
is other substantial work in the national economy that the claimant can

Audler v. Astrue, 501 F.3d 446, 447-48 (5th Cir. 2007) (citations omitted).

Garner does not have an impairment that meets or equals a listed impairment. Garner
argues that the Administrative Law Judge (ALJ) did not consider medical notes—after the July
1, 2011 ALJ decision date—from her treating physician regarding her back problems in order to
determine whether it met a listed impairment—specifically, Listing 1.04, 20 C.F.R. Part 404,
Subpart P, Appendix 1, § 1.04. See e.g. Docket No. 11, at 7-9; Docket No. 17, at 3-4.
Additionally, Garner states that the Commissioner should have retained a medical adviser, such
as the State Agency medical consultant, to aid in making the decision of whether her back
condition met this listing. Docket No. 17, at 3.

The ALJ was required to explain her adverse decision in determining why she found
Garner not to have met a listed impairment. Audler, 501 F.3d at 448. In Audler, the Fifth Circuit


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remanded to the district court because the ALJ summarily concluded that the claimant’s spinal
condition did not meet or medically equal one of the listed impairments, without listing which
impairment the Plaintiff’s condition did not meet or providing any rationale for her decision. Id.
The court explained, “[a]lthough the ALJ is not always required to do an exhaustive point-by-
point discussion, in this case, the ALJ offered nothing to support her conclusion at this step and
because she did not, we, as a reviewing court, simply cannot tell whether her decision is based on
substantial evidence or not.” Id. (emphasis added) (citations and quotation marks omitted). The
court, however, continued
administrative proceedings is not required as long as the substantial rights of a party have not
been affected.” Id. (quotation marks omitted) (citing Mays v. Bowen, 837 F.2d 1362, 1364 (5th
Cir. 1988)). The court ultimately concluded that the ALJ’s failure to provide a basis for her
decision affected the claimant’s substantial rights because the claimant provided medical
evidence that satisfied her burden to demonstrate that she met a listed impairment, and the ALJ
presented no evidence to the contrary. Id. at 449.

that “[p]rocedural perfection

its analysis, emphasizing

Similarly, in this case, the record shows that the ALJ did not mention the listing for which
Plaintiff’s spinal condition did not meet. Upon review of the ALJ’s decision, the ALJ did not
discuss Plaintiff’s spinal condition at all in evaluating step three of the analysis, focusing
exclusively on Plaintiff’s mental impairments. See Docket No. 9-2, at 16. Therefore, pursuant to
the Fifth Circuit’s rationale in Audler, this Court ordinarily could not rule on whether there is
substantial evidence to support the ALJ’s decision; however, “[p]rocedural perfection in
administrative proceedings is not required as long as the substantial rights of a party have not
been affected.” Audler, 501 F.3d at 448 (quotation marks and citations omitted). And, in this
instance, the ALJ’s failure to state the basis for Plaintiff’s adverse determination at step three
with respect to Plaintiff’s back condition was harmless error.

Although the ALJ omitted stating the grounds on which she based her decision at step
three, this case can be distinguished from Audler. Here, the Appeals Council considered
Plaintiff’s medical records after the ALJ decision and found that they did not affect the ALJ’s
ultimate decision to deny her benefits. Docket No. 9-2, at 5-6; see also Report and
Recommendation at 4. Moreover, while the Appeals Council did not explicitly explain how it
the Magistrate Judge’s Report and
Recommendation indicates, Garner has not presented post-operative evidence that could have

its conclusion, unlike Audler, and, as


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changed the result of this case. The record shows that there is also ample evidence for the
Appeals Council to support a finding that Plaintiff’s back condition did not meet a listed
impairment. See Report and Recommendation at 6-7, Docket No. 18. As the Magistrate correctly
notes, the Court is only tasked with making a determination of whether substantial evidence
supports the Commissioner’s findings. Report and Recommendation at 5, Docket No. 18.

Additionally, it is not incumbent on the ALJ or Appeals Council to submit post-hearing
evidence to a medical advisor for review in order to produce a proper judgment. Haywood v.
Sullivan, 888 F.2d 1463, 1468 (5th Cir. 1989) (“ALJ need only obtain updated medical
equivalency opinion when additional medical evidence is received which, in the opinion of the
ALJ, may change the determination ... that the impairment(s) does not equal the listing”) (citation
and quotation marks omitted). It is, however, Garner’s burden to prove her disability and, if
Garner has not presented sufficient evidence to sustain this burden, as the Court finds, it is within
the discretion of the ALJ “to order a consultative examination at government expense.” See
Schools. v. Comm'r of Soc. Sec., No. 1:99-cv-113, 1999 WL 33537136 *6 (N.D. Miss. Dec. 23,
1999) (citing Jones v. Bowen, 829 F.2d 524, 526 (5th Cir. 1987)). Therefore, the Commissioner
did not commit error simply because a medical advisor was not obtained to review certain
medical records in determining whether Plaintiff’s spinal condition met or equaled a listed

III. Conclusion
The administrative law judge’s decision comports with relevant legal standards and is
supported by substantial evidence. Accordingly, the Court hereby adopts the magistrate judge’s
Report and Recommendation to deny Plaintiff’s Motion for Summary Judgment and grant
Defendant’s Motion to Affirm the Decision of the Commissioner. A Final Judgment shall be
entered reflecting the same.

SO ORDERED, this the 19th day of September, 2013.

s/ Carlton W. Reeves