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, )

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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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