Deloatch v. Astrue
Filing
13
REPORT AND RECOMMENDATIONS re 12 MOTION for Summary Judgment filed by Michael J. Astrue, 8 MOTION for Summary Judgment filed by Anthony Deloatch. Signed by Magistrate Judge F. Bradford Stillman and filed on 7/1/09. (lhow, )
FILED
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA]
JUL - 1 230:
CLERK, U.S. DISTRICT COURT
Newport News Division
ANTHONY DELOATCH,
NORFOLK. VA
Plaintiff,
v.
MICHAEL J. ASTRUE,
ACTION NO.
4:08cv94
Commissioner of
the Social
Security Administration,
Defendant.
UNITED STATES MAGISTRATE
JUDGE'S
REPORT AND RECOMMENDATION
Plaintiff,
Anthony Deloatch
("Deloatch"},
brought this action 42 U.S.C.
under Sections 216 (i)
§ 405(g), 1383(c) (3),
and 223 of the Social Security Act,
seeking judicial review of the final decision {"Commissioner") denying his
of the Commissioner of Social Security
claim
for
Supplemental
Security
Income
("SSI")
under
the
Social
Security Act
This
(the
"Act").
was referred to the undersigned United States
action
Magistrate
§
Judge,
pursuant
to
the
provisions
of
28
U.S.C.
For the
636(b)(1)(B), reasons
by order of reference filed January 27, herein, the Court RECOMMENDS
2009. that
the
expressed
Commissioner's decision be UPHELD and the case be DISMISSED.
I. PROCEDURAL BACKGROUND
On
February
5,
2003,
Deloatch
filed
an
application
for
SSI
alleging an onset of disability as of November 19,
1998,
due to a
heart problem,
80-81.)
high blood pressure,
and Hepatitis C.
{R.1 72-73,
Deloatch's application was denied by the Social Security
initially on June 2, 2003 (R. 53), and upon
Administration
reconsideration
Deloatch <"ALJ") 11,
on
April
a
13,
2004.2
before
(R.
an
61.)
On
June
1,
2004,
requested of the
hearing
Administrative (R.
Law Judge On May
Social
Security Administration.
64.)
2005,
a video
teleconference hearing was
held,
with Deloatch
and his attorney in Newport News, Virginia,
Virginia. (R. 866-83.)
and the ALJ in Norfolk,
Deloatch was represented by counsel at the
hearing.
Augins, was
(R.
868.)
at
An
independent
vocational
expert,
(R.
Linda
On
present 2005,
the hearing and testified.
881.)
September 22,
the ALJ issued a written decision finding that
Deloatch was not disabled under the Act because he had the residual
functional exist
700.)
capacity
("RFC") numbers
to in
make the
an
adjustment
to
jobs (R.
that 692-
in
significant
national
economy.
On November 21, decision by the
2005,
Deloatch requested review of Council of the Office of
the ALJ's Disability
Appeals
1 2
"R." refers to the transcript of the administrative record
this case.
of proceedings relating to
Plaintiff
previously
Benefits
filed
(DIB)
an
on
application
June 30,
for
SSI
18.)
and
was
Disability
Insurance
1999,
which
denied by an ALJ following a hearing on May 4, 2001. (R. January 25, 2002, the Appeals Council denied plaintiff's
On request
for review of the decision.
Id. There is no indication that further
appeal was filed.
Id.
However,
id.
due to the lapse in time,
the prior
file has been destroyed,
Adjudication and Review 16, 2007, the Appeals
{"Appeals Council") . Council remanded the
(R. case
38-44.) to the
On July ALJ for
further proceedings.
(R.
701-704.)
Pursuant
Newport News,
to
the remand order,
the ALJ held a new hearing in
2007. (R. 884.) Deloatch was
Virginia on October 9,
represented
hearing,
at
the
hearing
by
the
same
counsel
expert,
as
at
the
K.
prior
Byers,
and an {R.
independent 884-96.)
vocational
Barbara the ALJ
testified.
On November
19,
2007,
issued a
decision
the
(R.
finding Deloatch was
because Deloatch had
not
the
disabled within
RFC to perform
the meaning of
sedentary work.
Act
15-32.)
On January
17,
2008,
Deloatch again
requested review of
the
ALJ's
decision denied
that (R.
by
the
Appeals
Council. for
to
{R.
14.) on
The July
Appeals 2008,
ALJ's "final
Council
stating
Deloatch's
found no
request
reason makes
review
or
10,
the the
it
review ALJ's
change
decision.
8-11.)
This
the
decision
decision"
pursuant
of
to 42
the
Commissioner
§ 405(g).
subject
20
to
§
judicial
review
here,
U.S.C.
C.F.R.
416.1481.
Deloatch brought the instant action seeking judicial review of
the decision of the Commissioner denying his claims for SSI.
Deloatch
filed
the
instant
complaint
on
September
9,
2008,
which
Defendant
for
answered on January 22,
2009.
Deloatch
filed a motion
on February 27,
summary judgment with a memorandum in support
2009.
Defendant
filed a motion for summary judgment
in opposition
to
Deloatch's
motion
for 2009.
summary
judgment
with
a memorandum response
in
support
on March 24,
The Court received no
from
Deloatch to Defendant's motion for summary judgment.
As neither
counsel in this case has indicated special circumstances requiring
oral argument in this matter, the case is deemed submitted for
decision based on the memoranda.
II. FACTUAL BACKGROUND
Deloatch is
a fifty
(50)
year old male,
who was
thirty-nine
(39) at the time of his alleged onset of disability and forty-eight
(48) at the time of the ALJ's November 19, 2007 decision. (R. 31.)
Deloatch has a general equivalency diploma and past work experience
as a laborer. (R. 82, 87, 107-114, 871-872.) Deloatch alleges an
onset
of
disability
as
of
November
19,
1998,
due
to
a
heart
problem, high blood pressure, and Hepatitis C.
The ALJ found that, at the time of
(R. 72- 73,
the October
80-81.)
9, 2007
hearing, Deloatch suffered from hypertension, history of congestive heart failure, chronic obstructive pulmonary disease, depression /
anxiety, and lumbar degenerative disc disease, found to be severe impairments.
were
all of which the ALJ The ALJ found that
The
(R.
21.)
Deloatch's
other
impairments
non-severe.
(R.
22-23.)
ALJ, however,
or exceed
found that Deloatch's severe impairments did not meet
of the listed impairments
(R. 23.)
one
in
20
C.F.R.
§§
404.1520(d),
404.1525,
and 404.1526.
The ALJ then found
that Deloatch had the RFC to perform sedentary work and could work
in unskilled occupations
and beverage not clerk. (R.
such as
32.)
small parts
assembler or a
food
The ALJ
found that Deloatch could laborer because he
(R. 31.)
return to his past work as
a construction
was limited to sedentary work with non-complex job tasks.
However,
in
the ALJ found that there are a significant number of jobs
economy that Deloatch could perform. (R. 31-32.)
the national
Accordingly,
the ALJ held that Deloatch was
the Act.
III.
"not disabled" within
the meaning of
(R.
32.)
STANDARD FOR SUMMARY JUDGMENT
Under Rule 56 of the Federal Rules of Civil Procedure,
summary
judgment should be granted only if "there is no genuine issue as to any material as a fact and of the . . . moving R. party P. is entitled For to the
judgment
matter
law."
Fed.
Civ.
56(c). fact,
evidence to present a "genuine"
issue of material
it must be
"such
that a reasonable
jury could return a verdict
Liberty Lobby, Inc.,
for
the non242, 248
moving party. "
Anderson v.
477 U.S.
(1986) .
of the
Facts are deemed material if they might affect the outcome
case. Celotex Corp. v. Catrett. 477 U.S. 317 (1986). In
other
words,
the
moving
party's
submission
must
foreclose
the
possibility of
the existence of inferences
facts
from which it would be open the non-movant. Id.
to a jury to make
favorable to
In deciding a summary judgment motion,
the Court must view the
record as a whole and in the light most favorable to the non-moving
party.
Terry's
Floor Fashions,
Inc.
v.
Burlington
Indus.,
Inc.,
763 F.2d 604,
610
(4th Cir. 1985).
"If, however,
'the evidence is
we
so one-sided that one party must prevail as a matter of law,'
must affirm the grant of summary judgment in that party's
favor."
O'Connor v. Consol. Coin Caterers Corp., 56 F.3d 542, 545 (4th Cir.
1995) (quoting Anderson, 477 U.S. at 251-52). Moreover, summary
judgment must be granted where the non-moving party "fails to make
a
showing
sufficient
to
establish
the
existence
of
an
element
essential
to that party's case and on which that party will bear at trial," Celotex, 477 U.S. at 322, as the
the burden of proof
non-moving party is required to "set forth specific facts showing
that there is a
R.
genuine
Civ. P.
issue
56(e).
for
trial"
with
respect
to
that
element.
Fed.
When confronted with cross-motions for summary judgment,
standards upon which
judgment do not
"the
the Court
evaluates
the motions
for summary
cross-
change simply because
the parties
present
motions."
Taft Broad. Co. v. United States,
929 F.2d 240,
248
(6th
Cir.
1991).
n[T]he Court must review each motion separately on its
xto determine whether either of the parties deserves
own merits
judgment as a matter of law. '" Rossianol v. Voorhaar,
523 (4th Cir. 2003) (quoting Philip Morris Inc. v.
316 F.3d 516,
122
Harshbaraer,
F.3d 58,
IV.
62 n.4
(1st Cir.
1997)).
COMMISSIONER'S DETERMINATION
STANDARD FOR REVIEW OF THE
The Commissioner ultimately held
that
Deloatch was
not
under
a
disability
within
the
meaning
of
the
Act.
Under
42
U.S.C.
§ 405(g),
the scope of judicial review of the Commissioner's final
Smith v. Schweiker, 795 F.2d 343,
decision is specific and narrow.
345
(4th
Cir.
1986).
This
Court's
review
of
that
decision
is
limited to determining whether there is substantial evidence in the
administrative record to support the Commissioner's decision. U.S.C.
1992)
42 Cir.
§§
§
405(g);
Hunter
v.
Sullivan.
993
F.2d
31,
34
(4th
(per curiam)
(superceded in non-relevant part by 20 C.F.R.
404.1517 (d) (2) ,
416.927(d) (2) ) ;
Havs
v.
Sullivan,
907
F.2d
1453
(4th Cir.
as a
1990) .
Substantial evidence is
mind might accept as
"such relevant evidence
adequate to support a
reasonable
conclusion."
Hunter.
993 F.2d at 34
(citing Richardson v.
Perales,
402
U.S.
389, of
401
(1971)). but
It may
consists be
of
more
than less
a
mere a 642
scintilla
evidence Id.
somewhat
than
preponderance.
(4th Cir.
(quoting Laws v.
Celebrezze.
368 F.2d 640,
1966)) .
The
Commissioner
has
the
duty
to
make
findings
of
fact
and
resolve conflicts in the evidence.
King v. does Califano. conduct 599 a F.2d 597, de novo 599
Havs.
907 F.2d at 1453
1979)). evidence
(citing
(4th Cir. of the
The Court or of the
not
review
Commissioner's findings.
Schweiker.
795 F.2d at 345.
In reviewing
for substantial evidence, conflicting
substitute
the Court does not undertake to re-weigh make
for
evidence,
its
to
credibility
of the
determinations,
or
to
v.
judgment
that
Commissioner.
Craig
Chater.
76 F.3d 585,
589
(4th Cir.
1996)
(citing Havs.
907 F.2d at
1456).
"Where
conflicting
evidence
allows
reasonable
minds
to
differ as to whether a claimant is disabled,
that decision falls
designate,
the responsibility for
on the Commissioner
Craig, 76 F.3d
(or on the Commissioner's
at 589 (quoting Walker v.
the ALJ)."
Bowen.
834 F.2d 635,
640
(7th Cir.
1987)).
The denial of benefits
will be reversed only if no reasonable mind could accept the record
as adequate to support 401 the determination. Richardson v. Perales.
402 U.S.
389,
(1971).
The issue before this Court,
therefore,
is not whether Deloatch is disabled, but whether the Commissioner's
finding that Deloatch is not disabled is
evidence and was
relevant law.
supported by substantial
application of
F.2d 514, 517
reached based upon a
id.; Coffman v.
correct
829
the
(4th
See
Bowen.
Cir.
if
1987)
it was
("[A]
factual
by
finding by an
means of
[ALJ]
an
...
is not binding
standard or
reached
improper
misapplication of
law.").
V. ANALYSIS
The
Social
Security Regulations
define
"disability"
for
the
purpose of obtaining disability benefits under Title II of the Act as the "inability to do any substantial gainful activity by reason
of
any
medically
determinable
physical
or
mental
impairment [3]
which can be expected to result in death or which has lasted or can
3A "physical or mental impairment" is an impairment resulting
from "anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3).
8
be
expected
to
last
for
a
continuous
period
of
not
less
than
12
months." §
20 C.F.R.
§§
404.1505(a),
416.905(a);
see also 42 U.S.C.
423(d)(1)(a).
To meet this definition,
the claimant must have a
severe impairment that makes
it impossible to do previous work or
any other substantial gainful activity4 that exists in the national
economy.
§
20 C.F.R.
§§ 404.1505(a),
416.905(a);
see also 42 U.S.C.
423 (d) (2) (A) .
A.
Sequential Disability Analysis
The Commissioner
follows
a
five-step
sequential which is
analysis
to
ascertain whether the claimant is disabled, 20 C.F.R. § 416.920. See Hall v. Harris,
set forth at 264-65 (4th
658 F.2d 260,
Cir.
1981) .
Under
this
process,
the
ALJ
must
determine
in
sequence:
(1)
Whether the claimant
is
engaged in substantial
gainful If so,
activity (i.e., whether the claimant is working).
the claimant is not disabled and the inquiry is halted.
(2) Whether the claimant has a severe impairment. If not,
the claimant is not disabled and the inquiry is halted.
(3)
Whether
the
impairment
meets
or
equals
the
medical
criteria of 20 C.F.R., which sets forth a
Part 404, of
Subpart P,
Appendix 1, warrant a
list
impairments
that
performing significant or productive physical or mental duties, and (2) is done (or intended) for pay or profit. 20 C.F.R
§§ 404.1510, 416.910.
4 "Substantial
gainful
activity"
is work that
(1)
involves
finding
of
disability
without
considering
vocational
criteria.
If
so,
the
claimant
.is.
disabled
and
the
inquiry is halted.
(4)
Whether
the
impairment
prevents
the
claimant
from
performing past relevant work.
If not,
the claimant is
not disabled and the inquiry is halted.
(5) Whether the claimant is able to perform any other work
considering both his his vocational
residual If
functional so, the
capacity5 is
and not
abilities.
claimant
disabled.
1. Steps One Through Three
In
this
case,
the ALJ decided at
step
five of
the analysis
the
that Deloatch was not disabled.
At step one of
the analysis,
ALJ determined that Deloatch had not engaged in substantial gainful activity since February 28, 2003. (R. 21.) At step two, the ALJ
determined
that
Deloatch's
hypertension,
history
of
congestive
heart failure,
anxiety, and
chronic obstructive pulmonary disease, depression /
lumbar degenerative disc disease are severe
impairments.
(R. 21.)
At step three,
the ALJ found that Deloatch
did not have a severe impairment or combination of impairments that
meet or medically equal one of the impairments listed in 20 C.F.R.,
5
in a work setting despite the physical and mental limitations of his impairment and any related symptoms (e.g., pain). See 20
C.F.R. § 416.945(a)(1).
"Residual functional capacity" is the most a claimant can do
10
Part
404,
Subpart
P,
Appendix 1. 2.
{R.
23.)
RFC Determination
Prior
to
step
four,
the
ALJ
determined Deloatch's
RFC
upon
consideration objective
determined
work. (R.
of
the
entire
record. and
{R.
21.)
Based
on the
the ALJ
medical
that
24.)
evidence
Deloatch's
the RFC
testimony,
to perform
Deloatch
retained
sedentary
Specifically,
Mr.
Deloatch
is
able
to
lift/carry
10
pounds
occasionally and frequently. During the course of an 8 hour work day he is capable of sitting
up for 6 hours and standing/walking for up to 6 hours. The claimant has non-exertional
limitations.
Due
to
his
cardiac/pulmonary
problems, he is precluded from working in extremes of heat and cold. Due to depression, Mr. Deloatch is precluded from performing complex/detailed tasks and from having frequent contact with the general public.
(R. 24.) a. Deloatch's Claims
Deloatch argues that the ALJ erroneously assessed his residual functional capacity for four reasons: (1) the ALJ failed to set
forth a narrative discussion as required by Social Security Ruling
96-8p;
(2)
the
ALJ
did
not
include
moderate
limitations (3)
in the
concentration, persistence,
or pace in his RFC assessment;
ALJ did not
elevation;
evaluate
(4)
evidence regarding Deloatch's need for leg
and
the ALJ did not evaluate the opinion from Dr.
had a Global Assessment Function
Mumford stating
that plaintiff
(GAF)
of
50.
Plaintiff's
Mem.
at
7.
The
Court will
take
each
11
argument
in turn.
Regarding Deloatch's first argument,
ALJ failed to set
Deloatch claims that the
forth a narrative discussion describing how the
evidence supported each conclusion and "failed to build an accurate
and
logical
bridge
Mem. at
from
7.
the
Under
evidence
Social
to
his
conclusion."
Rule 96-8p, a
Plaintiff's residual
Security
functional
capacity
assessment must
include a narrative
discussion describing how the evidence supports each conclusion by
citing
specific
medical
and
non-medical
facts
in
the
record.
Social Security Rule 96-8p.
function by function analysis,
In so doing,
the ALJ must engage in a
discussing the claimant's functional
limitations discernable from the relevant evidence in the record.
Id. In other words, the form of the ALJ's analysis is that the ALJ
examines the relevant evidence in the record,
determines from that
and,
evidence whether the claimant has any functional limitations, if any functional limitations are found, into the residual functional
factors those limitations See id.
capacity assessment.
Contrary
to
Deloatch's
contentions,
the
ALJ
exhaustively
although
discussed the evidence of
record and then explained that
he
did
not
doubt
Deloatch
was
limited
by
his
impairments,
the
record evidence did not support a conclusion that he was precluded from all work activity. {R. 30.) The ALJ adequately followed the
The ALJ
form of analysis required by Social Security Ruling 96-8p.
first examined and discussed Deloatch's own testimony and concluded
12
that
Deloatch's
"medically
determinable
impairments but
could that and
reasonably be expected to produce Deloatch's statements regarding
the alleged symptoms," the intensity,
persistence,
limiting effects of the symptoms were "not entirely credible."
26.) The ALJ next discussed Deloatch's medical history,
(R.
thoroughly
examining
the
medical
evidence
in
the
record.
(R.
26-30.)
Specifically,
Mr. Deloatch has hypertension and
However, he has
a history congestive
had good
of significant heart failure.
response to
medications. To reiterate, in December 2002 an echocardiogram showed an ejection fraction of 40 percent. [R. 225] In March 2004 an echocardiogram showed an ejection fraction of 50 percent with normal hemodynamics. [R. 441442] In June 2004 a Pulmonary Function Study
showed moderate chronic obstructive pulmonary disease. The medical evidence is indicative of mild to moderate limitations of cardiac and pulmonary function. Albeit Mr. Deloatch has access to free medical care through the VAMC, he has not followed up with treatment. [R. 202, 314, 351, 649] This is not consistent with allegations of severe symptoms. (R. 30.) Taking into account Deloatch's age, education, work
experience,
and residual
functional
capacity,
the ALJ
then
found
that Deloatch could perform light work;
specifically,
Deloatch was
able to occasionally and frequently lift and carry ten pounds,
sit
at least six hours out of eight and stand and/or walk six hours out
of eight.
(R.
24.)
Thus,
the ALJ properly considered Deloatch's
non-compliance with treatment in formulating his RFC assessment and
found that his
limitations were not
as
disabling as
alleged.
The
13
ALJ did all of this through a narrative discussion. Court disagrees with Deloatch's ALJ fully complied with Social
Therefore,
the
first argument and FINDS Security Ruling 96-8p.
that the
Second,
Deloatch
claims
that
the
ALJ
failed
to
include
moderate limitations in concentration, persistence, and pace in his
RFC assessment. Deloatch argues that the ALJ found Deloatch had
limitations
in
concentration
in
step
three,
but
then he
did not
include these limitations
at 7. However, the ALJ
in his RFC assessment.
Plaintiff's Mem.
mental
specifically evaluated Deloatch's
function and the impact it had on his work-related abilities. ALJ noted that although Deloatch complained were of depression
The and
anxiety,
his
mental
status
examinations
essentially
normal 30.)
that
except for a slight decrease in concentration and memory.
In September of 2004, a mental status examination
{R.
noted
Deloatch's mood was "dragging" and his concentration was decreased.
R.
29) .
However,
also noted
the
rest of
that
same mental
within Dr. a
status
normal
examination
range. (R.
report 29.) that
results
which of
fell
Additionally, Deloatch's
limits.
in July
2005,
Mark G.
Berger
reported
concentration,
(R. 29.)
attention,
and memory were within
reported that he was
normal
Although
Deloatch
anxious and depressed,
Dr.
Berger stated that it appeared Deloatch (R. 29.)
was exaggerating the extent of his anxiety and depression.
Thus, contrary to Deloatch's contentions, the ALJ
considered
Deloatch's limitations in concentration and limited him to working
14
in simple,
unskilled work which does not require a large amount of
(R. 24.)
concentration.
Third,
Deloatch argues
that the ALJ did not evaluate evidence
regarding Deloatch's need for leg elevation.
Deloatch concedes that the ALJ properly
Plaintiff's Mem. at 7.
testimonyit was
considered his
regarding the elevation of his not entirely credible. (R. 26.)
legs before concluding that However, Deloatch argues Edwin Malixi,
that the
ALJ failed to evaluate the opinion of Dr. treating physician,
his legs to a
Deloatch's to elevate
time
who
reported
of three
that
feet
Deloatch needed
fifty percent
height
of
the
throughout 433.)
that
an
eight
hour
day.
Plaintiff's
Mem.
at
8;
(R. and
428, finds
This
the
Court
ALJ
disagrees with Deloatch's
considered the
contentions
of
properly
opinion
Dr.
Malixi.
Specifically, As
the ALJ stated: for the opinion evidence, the undersigned
has considered the Cardiac Residual Functional Capacity Questionnaire, dated August 9, 2004, and the Physical Residual Functional Capacity Questionnaire, dated August 9, 2004, from a treating source, which indicate that the claimant is not capable of performing even sedentary work. [R. 428, 433] The undersigned
accords those opinions no weight, as they are
not
consistent
with
only
mild
to
moderate
findings {R. 30.)
on testing.
Fourth,
Deloatch argues
the ALJ
failed
to properly evaluate
the opinion of the Veterans Administration psychological examiner,
15
Dr. Marinell Miller Mumford6, who found that Deloatch suffered from
major depressive disorder,
anxiety disorder.
condition, points out
chronic and severe,
and a generalized
(R. 482.)
Dr. Mumford stated that based upon his
(R. 482.) Deloatch correctly a GAF of 50 was
Deloatch had a GAF of 50. that the ALJ
erroneously noted
that
commensurate with
"moderate"
symptoms when
{R.
in
fact
the
score
is
commensurate with "serious" Statistical Manual
Psychiatric
symptoms.
29,482);
Diagnostic and American
also
of Mental
1994
Disorders,
p.32.
Fourth Edition,
the
Association,
However,
Defendant
correctly notes
"serious"
that although a score of
it is on the highest
50
is
commensurate with
of that scale, as
symptoms,
end
"moderate"
symptoms
start
at
a
GAF
of
51.
DSM-IV
at
32.
Nevertheless,
insignificant
this
Court
finds
the ALJ's
error
to be
slight
and
in light of his
overall
evaluation of Dr.
Mumford's
opinion.
The
ALJ
went
on
to
discuss
additional
evidence
on
the
record which is inconsistent with a GAF score indicating "serious"
symptoms. (R. 29-30.) Notably, in June of 2005, Dr. Mark G. Berger
completed a report of consultative examination and concluded that
Deloatch's 29, 687) GAF was 65, which is indicative of mild symptoms. (R.
The ALJ then went on to conclude:
While the claimant complains of depression and anxiety, his mental examinations have essentially been
severe status within
6
Deloatch's Global Assessment of Function was
administered
and signed by Deborah S. Vick, a psychology doctoral intern. The results were co-signed by Dr. Marinell Miller Mumford. (R. 482)
16
normal limits, with the decrease in concentration
exception and mild
of a memory
impairment. Mr. Deloatch has been treated with medication and psychotherapy. He functions
well.
(R.
30.)
Therefore,
the Court finds the ALJ properly evaluated the
severity of Deloatch's mental
impairment.
This is a case where there appears to be substantial evidence
in the record to support either a finding that Deloatch is disabled
or a finding that he is not disabled within the meaning of the Act.
On the one hand, Deloatch's own testimony, if taken as credible,
and the opinions of Deloatch's treating physician,
Dr. Malixi,
and
psychologist,
disabled.
Dr.
Mumford,
can support a finding that Deloatch is
the other evidence in the record can
On the other hand,
support
a
finding
that
Deloatch ALJ
is
not
disabled. that
Given was
this not
conflicting
evidence,
the
determined
Deloatch
disabled because Deloatch could perform sedentary work. here reviewed
993
The Court evidence.
that
determination
34.
only
for
substantial
Hunter.
F.2d at
Contrary
to
Deloatch's
contentions,
the
ALJ
exhaustively
discussed
the
evidence
in
the
that
record
and
then
was
explained
that
although he did not
doubt
the plaintiff
limited by his
impairments,
the record evidence did not support a conclusion that
(R. 3 0) Thus
had
he was precluded from all work activity.
concludes the ALJ's determination that
this Court
the RFC to
Deloatch
perform sedentary work is supported by substantial evidence.
17
3.
Steps Four and Five
four that Deloatch could not return
The ALJ concluded at step
to his
past
relevant work.
(R.
31.)
The ALJ
then
found at
step
five
that
Deloatch's
medical
condition
did not
(R.
prevent
him
from
took
finding and performing sedentary work.
31-32.)
The ALJ
into
consideration
Deloatch's
RFC,
age,
education,
and
work
experience along with the Medical-Vocational Guidelines of Appendix 2 of the regulations,
31.)
expert
20 C.F.R.
Subpart P,
from an
a
Regulations No.
independent
significant
4.
(R.
The ALJ
who
also
took
that
testimony
there
vocational
number of
stated
were
unskilled,
sedentary
jobs
existing
in
the
(R.
national
31-32.)
relied
and
local
economies which Deloatch could perform.
Deloatch argues that the ALJ
erroneously
upon
the
testimony of that end,
the vocational
expert.
Plaintiff's
Mem.
at
12.
To
Deloatch argues that the medical evidence and Deloatch's
own testimony demonstrate that there are no jobs which exist in the
national
economy
that
the
claimant that
can
perform.
id.
at
13.
Specifically,
Deloatch argues
the ALJ
erred by disregarding Dr. Malixi, and the when Id.
the opinion of Deloatch's opinion of Dr. Mumford,
treating physician, the VA's
psychological
examiner, expert.
posing his hypothetical question to the vocational
Deloatch's arguments are without merit,
because
the ALJ had
sufficient grounds
for determining Deloatch's
impairments and the
resulting
effect
on
his
ability
to
work,
including
his
18
determination of the appropriate weight to give to Dr. Malixi's and
Dr. Mumford's opinions, as discussed supra. In doing so, the ALJ
posed a series of hypothetical questions to the vocational expert
that
were
consistent
with
the
ALJ's
findings
of
Deloatch's
limitations.
The hypothetical individual, as described by the ALJ,
with a GED and past work experience as pushing,
was forty-eight years old, a laborer,
who could only occasionally perform grasping,
and pulling, who needed sedentary work and should avoid extremes of
heat and cold as well The vocational the job expert of as complex or difficult that such an tasks. (R. 892.) could or a
responded
individual operator in
perform
an automatic and that
grinding machine jobs existed
sedentary
assembler,
such
significant
numbers in the national and local economies.
{R. 893.)
Examination
of the vocational expert by Deloatch's counsel revealed that a job
would not exist for an individual who has the age, education, and
work history of the claimant but would have to miss days a week because of medical impairments. {R. 894)
one or more
Additionally,
the vocational expert testified that all potential jobs would be
eliminated if a condition that
the claimant must raise his
legs
three feet for fifty percent of the day were added to the original
hypothetical. (R. 895)
It appears to the Court that the vocational expert's testimony
on the additional points was responsive to the questions posed by
Deloatch's
counsel,
but pertained to an individual with greater
19
limitations than those found credible by the ALJ.
decision not to rely on this portion of
Thus,
the ALJ's
expert's
the vocational
testimony in informing his decision was not in error.
See Brobst
v.
Barnhart,
96
Fed.
Appx.
Bowen,
824,
827
{3d Cir.
50-51
2004)
(unpublished
1989).
decision);
Walker v.
889 F.2d 47,
(4th Cir.
Based
substantial
on
the
foregoing,
the
Court
FINDS
that
there
is
the
evidence
in the administrative record to support
ALJ's consideration of the vocational expert's testimony,
the ALJ's decision to do so was reached based upon a
and that
correct
application of
the relevant
B.
law.
Conclusion
The
Court
FINDS
that
the
ALJ's
decision
was
based
upon
substantial
evidence.
In particular,
the ALJ
throughly reviewed
the entire record, properly assigned weight to Deloatch's treating
physician, properly assigned weight to the State Agency physicians, and properly considered and weighed Deloatch's
VI . RECOMMENDATION
testimony.
For the foregoing reasons,
the Court recommends that the final
that defendant's motion for
decision of the Commissioner be UPHELD,
summary
judgement
be
GRANTED,
and
that
plaintiff's
motion
for
summary judgement be DENIED. Accordingly,
the case be DISMISSED.
VII .
the Court recommends that
REVIEW PROCEDURE
By
copy
of
this
Report
and Recommendation,
the parties
are
20
notified that pursuant to 28 U.S.C.
1.
Clerk
§
636(b)(1)(C):
Any party may serve upon the other party and file with the
written objections to the foregoing findings and
specific
recommendations
within
ten
(10)
days
from
the
date
of mailing
of
this and
report Federal of
to
the
objecting party, Civil Procedure
see
28
U.S.C.
§
636(b)(l)(C) to (3)
Rule
of
72(b),
computed pursuant plus three
Rule 6(a)
the Federal Rules of Civil
Procedure,
days permitted by Rule 6{e)
of said rules.
A party may respond to
another
party's
specific
objections
within
ten R.
(10) P.
days
after
being served with a copy thereof.
2. A district judge shall
See Fed.
make a de
Civ.
72(b).
of
novo
determination
those
portions
of
this
report
or
specified
findings
or
recommendations
to which objection is made.
The parties
are further notified that
failure
to
file timely
objections to the findings and recommendations set forth above will
result in a waiver of the right to appeal from a judgment of this
Court based on such findings
474 U.S. 140 (1985); Carr v.
and recommendations.
Hutto. 737 F.2d 433
Thomas v.
(4th Cir.
Am,
1984);
United States v.
Schronce.
727
F.2d 91
(4th Cir.
1984).
United States Magistrate Judge
Norfolk, Virginia
July,| 2009
21
CLERK'S
MAILING
CERTIFICATE
this
A copy of the foregoing Report and Recommendation was mailed date to the following:
Scott Bertram Elkind 801 Roeder Rd Suite 550 Silver Springs, MD 20910
COUNSEL FOR PLAINTIFF
Mark Anthony Exley
United States Attorney Office
101 W Main St Suite 8000 Norfolk, VA 23510
COUNSEL FOR DEFENDANT
Fernando Galindo,
Clerk
By: /
Deputy Clerk
July c^., 2009
22
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