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