Thomas v. Colvin

Filing 17

OPINION and ORDER - DENYING 9 Motion for Summary Judgment; GRANTING 11 Motion for Summary Judgment; ADOPTING and approving 14 Report and Recommendations; AFFIRMING the recommendation of the Magistrate Judge that the final decision of the Acti ng Commissioner be upheld. Plaintiff is advised that he may appeal from this Opinion and Final Order by forwarding a written notice of appeal to the Clerk of the United States District Court, United States Courthouse, 600 Granby Street, Norfolk, Virg inia 23510. Said written notice must be received by the Clerk within sixty (60) days from the date of this Order. If Plaintiff wishes to proceed in forma pauperis on appeal, the application to proceed in forma pauperis is to be submitted to the Clerk, United States Court of Appeals, Fourth Circuit, 1100 E. Main Street, Richmond, Virginia 23219. Signed by District Judge Henry C. Morgan, Jr on 3/15/2016. Copies distributed to counsel of record.(cchr)

HILED
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA

1

Newport News Division

NATHANIEL THOMAS,

2016

j cllmk, us, Districtcourt
I

NORFQ; k

Plaintiff,
V.

Civil Action No.: 4:14cvl05

CAROLYN W. COLVIN
ACTING COMMISSIONER OF SOCIAL SECURITY,

Defendant.

OPINION AND ORDER

This matter comes before the Court on Plaintiff Nathaniel Tliomas's ("PlaintifT')

Objections lo the Report and Recommendation of the Magistrate Judge. Doc. 15. For the
reasons explained below, the Court OVERRULES Plaintiffs objections and ADOPTS the
Magistrate Judge's Report & Recommendation C'R&R"), Doc. 14.
I.

BACKGROUND

Plaintiff does not object to the recitation of ihe procedural and factual background of this
case contained in the R&R, which sets forth, inter alia, the following facts. Plaintiff filed an

application for disability insurance benefits ("DIB") with the Social Security Administration
("SSA") on Februar>' 8, 2011, alleging a disability onset date of October 29, 2009. R&R at 2.
The application alleged that Plaintiff suffered from unemployability, bilateral pes planus with
heel spurs, left wrist tendonitis, a lumbosacral strain, lumbar degenerative disc disease, posttraumatic stress disorder ("PTSD"), and sleep apnea. Id, Plaintiffs application was denied

initially, as well as upon reconsideration.' Id Plaintiff then requested an administrative hearing,
which was conducted on February 27, 2012. Id; see also R. 31-52. Following the hearing,
Administrative Law Judge ("ALJ") Tom Duann concluded that Plaintiff was not disabled within
the meaning of the Social Security Act and denied Plaintiffs claim for disability benefits. R.
12-23. Plaintiff sought to appeal the ALJ's decision, but the Appeals Council denied his request

for review on September 25, 2012, making the ALJ's decision the Commissioner's final
decision. R&R at 2; see also R. 1-3.

On November 26, 2012, Plaintiff filed a Complaint against the Commissioner of Social

Security ("the Commissioner"), seeking judicial review of the Commissioner's decision. ^

Doc. 1 (4:12cvl79). On November 6, 2013, Chief United States District Judge Rebecca Beach
Smith of the Eastern District of Virginia vacated the Commissioner's decision and remanded the
case to the ALJ. R. 589-91.

ALJ Duann conducted another hearing on March 25, 2014. R. 531-58. Following this

hearing, the ALJ again concluded that Plaintiff was not disabled within the meaning of the Social
Security Act and denied his claim for disability benefits. Id at 493-510. Plaintiff sought to
appeal the ALJ's decision, but the Appeals Council denied his request for review on June 30,
2014. Id at 469-72. This denial made the ALJ's decision the Commissioner's final decision.
!d

Plaintiff filed the instant action on August 18, 2014, seeking judicial review of the Acting

Commissioner's ("Defendant") decision.

See Doc. 1. The Acting Commissioner filed an

Answer on December 30, 2014. Doc. 5. After this Court referred this matter to a Magistrate

Judge on January 6, 2015, both parties filed motions for summary judgment. Docs. 9, 11. On
' Plaintifrs initial application was denied on June 3, 2011. Certified Administrative Record ("R") 84-86. On July
29, 2011, upon reconsideration, the Social Security Administration found that the denial of PlaintifFs claim was
proper. R. 90-92.

January 7, 2016, the Magistrate Judge issued the R&R, which concludes that substantial

evidence supports the ALJ's decision. Doc. 14 at 19-31. Accordingly, the Magistrate Judge
recommends that summary judgment be issued in favor of the Acting Commissioner. Id at 31.
Plaintiff filed his objections to the R&R on January 20, 2016. Doc. 15. Defendant filed a

response on February 2, 2016, Doc. 16, and this matter is now ripe for the Court's consideration.
II.

STANDARD OF REVIEW

Pursuant to the Federal Rules of Civil Procedure, the Court reviews ^ novo any part of a

Magistrate Judge's recommendation to which a party has properly objected. Fed. R. Civ. P.
72(b)(3). The Court may then "accept, reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate judge with instructions." Id. The Court

reviews those parts of a Magistrate Judge's recommendation to which a party has not objected
for clear error. ^

28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72; see also Diamond v. Colonial Life

& Acc. Ins. Co.. 416 F.3d 310, 315-16 (4th Cir. 2005).

In exercising ^ novo review of the parts of a Magistrate Judge's recommendation to

which a party has properly objected, the Court analyzes the Commissioner's final decision using
the same standard as that used by the Magistrate Judge. Specifically, the Court's review of the
Commissioner's decision is limited to determining whether that decision was supported by

substantial evidence on the record and whether the proper legal standard was applied in

evaluating the evidence. 42 U.S.C. § 405(g); Johnson v. Bamhart. 434 F.3d 650, 653 (4th Cir.
2005) (per curiam). Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept to support a conclusion." ]d. (quoting Craig v. Chater. 76 F.3d 585, 589 (4th
Cir. 1996)) (internal quotation mark omitted). Courts have further explained that substantial
evidence is less than a preponderance of evidence, but more than a mere scintilla of evidence.

Laws V. Celebrezze. 368 F.2d 640, 642 (4th Cir. 1966). Importantly, in reviewing the ALJ's
decision the Court does not "reweigh conflicting evidence, make credibility determinations, or

substitute [its] judgment for that of the [ALJ]." Id (quoting Craie. 76 F.3d at 589) (internal

quotation mark omitted) (final alteration in original). Thus, if the Court finds that there was
substantial evidence to support the ALJ's factual findings, even if there was also evidence to

support contrary findings, the ALJ's factual findings must be upheld.
III.

ANALYSIS

Plaintiff disagrees with the ALJ's conclusion that he is not eligible for Social Security

Disability Benefits. ^

Doc. 15 at 2. In his motion for summary judgment. Plaintiff asserts that

the ALJ erred (1) by improperly rejecting the disability determination of the Department of
Veterans Affairs ("VA"); (2) in failing to adequately explain his evaluation of the medical

opinion of Plaintiffs primary care physician, Dr. Graham; and (3) in inappropriately rejecting
Plaintiffs testimony and in acting hostile toward Plaintiff at the remand hearing. Doc. 10.
In the R&R, the Magistrate Judge rejects Plaintiffs arguments and recommends that the

Acting Commissioner's final decision be affirmed, first, because the ALJ did not err in affording
the VA decision slight weight. Doc. 14 at 19. Second, the Magistrate Judge found that the ALJ

properly considered and explained the weight given to the medical evidence and that substantial
evidence in the record supported the ALJ's decision to give minimal weight to the opinion ofDr.
Graham, Plaintiffs treating physician. Id at 22. Finally, the Magistrate Judge found that the

ALJ properly assessed Plaintiffs credibility and that the remand "hearing transcript does not
indicate that [the ALJ's] questioning rose to the level of 'inappropriate hostility' that biased the

proceedings or prevented plaintiff from fully explaining his impairments." Id at 28-30.

In his objections to the R&R, Plaintiff requests that the R&R be rejected and that
summary judgment be entered in Plaintiffs favor, because the residual functional capacity

("RFC") as determined by the ALJ is not supported by substantial evidence. Doc. 15 at 3.
A. Plaintiff Did Not Properly Raise His Objections.

In general, "issues raised for the first time in objections to the magistrate judge's
recommendation are deemed waived." Deaver v. Colvin. No. 5; 13cv05776, 2014 WL 4639888,

at *7 (S.D. W.Va. September 16, 2014) (quoting Harris v. Astrue. 2012 WL 4478143, at *5

(D.S.C. 2012) (affd by Harris v. Commissioner of Social Sec. Admin.. 538 Fed. Appx. 293 (4th
Cir. 2013)) (quoting Marshall v. Chater. 75 F.3d 1421, 1426 (10th Cir. 1996))). However, as

"part of its obligation to determine de novo any issue to which proper objection is made, a
district court is required to consider all arguments to that issue, regardless of whether they were

raised before the magistrate." Hendrix v. Colvin. No. 5:12-cv-0I353, 2013 WL 2407126, at *3

(D.S.C. June 3, 2013) (quoting United States v. George. 971 F.2d 1113, 1118 (4th Cir. 1992))
(internal quotations omitted). Thus, while "parties may not raise new claims in their objections
to a magistrate judge's report, [the] district court must consider new arguments respecting any

existing claims." Hendrix. 2013 WL 2407126, at *3 (citing Foster v. BNP Residential Props.
Ltd. P'ship. No. 2:06-cv-2440, 2008 WL 512788, at *5-6 (D.S.C. Feb. 25, 2008)). In Deaver,

for example, the plaintiff objected to the ALJ's omission of limitations from his hypothetical
question and his RFC to account for certain severe impairments. 2014 WL 4639888, at *7.
However, "because the [pjlaintiff did not raise her issue with any of the hypothetical questions in

her brief in support of the pleadings before the Magistrate Judge, it [was] inappropriate to now
raise them in her objections," and the Southern District of West Virginia refused to address this
issue. Id.

Here, Plaintiffs objections do not contain new arguments in support of an issue that was
before the Magistrate Judge but instead represent completely new claims. Originally, Plaintiff
contended that (1) the ALJ improperly discounted the VA's findings in violation of the Fourth
Circuit's ruling in Bird v. Commissioner of Social Security Administration. 699 F.3d 337 (4th
Cir. 2012); (2) the ALJ improperly rejected the opinion of Dr. Graham; and (3) the ALJ

inappropriately rejected Plaintiffs credibility. ^

Doc. 10 at 3. In his response in support of his

motion for summary judgment, Plaintiff again argued that the ALJ failed to properly comply

with Bird when considering the VA rating. Doc. 13 at 2. Nowhere in the pleadings before the

Magistrate Judge did Plaintiff allege that the ALJ erred in assessing Plaintiffs difficulties in
concentration, persistence, or pace, nor did Plaintiff previously allege that the ALJ erred in his
evaluation of Dr. Walter's and Dr. Deaver's opinions, as he does in his objections. S^ Docs. 10,

13, 15 at 2-6. Just as the plaintiff in Deaver failed to raise any issue with the ALJ's hypothetical

questions in her original pleadings, 2014 WL 4639888, at *7, Plaintiff here did not contest any of
the hypothetical posed to the vocational expert ("VE") in his original briefing.
Although Plaintiff did note that "the ALJ's assessment of Plaintiffs residual functional capacity
("RFC") is not supported by substantial evidence," Plaintiff limited his initial claims to whether
"the ALJ improperly rejected the opinion of the primary care physician Dr. Leroy Graham and
inappropriately rejected Plaintiffs credibility." Doc. 13 at 2. Therefore, the issues that Plaintiff
now raises concerning whether the ALJ failed to give appropriate consideration to Plaintiffs
mental impairments and whether the ALJ erred by failing to include limitations from Dr. Walter"
and Dr. Deaver in the RFC represent new claims, and Plaintiff should not be able to raise these

new issues in his objections by arguing that they merely represent new arguments regarding a
claim that was before the Magistrate Judge.

Indeed, Plaintiff does not argue that his new claims represent additional arguments on
issues already presented to the Magistrate Judge. Instead, Plaintiff bases his argument on the

Fourth Circuit's recent holding in Mascio v. Colvin. 780 F.3d 632 (4th Cir. 2015), and notes that
the "briefs in this matter were filed before the decision in Mascio was issued which is very

relevant here as plaintiff specifically contends that the Magistrate Judge erred in upholding the
ALJ's RFC which failed to give appropriate consideration to plaintiffs mental impairments

(found at step two to cause mild limitations in maintaining concentration, persistence, or pace,
and moderate limitations in social functioning), in determining his RFC before reaching step

four." Doc. 15 at 3^. The Court agrees with Defendant, however, that "while Plaintiff couches

his present argument as derived from Mascio. Plaintiffs current argument is actually far more

accurately characterized as an attack on the ALJ's evaluation of the medical evidence, including
the ALJ's evaluation of Dr. Walter's and Dr. Deaver's assessments." Doc. 16 at 4. Thus,

although this Court need not address Plaintiffs new arguments, in an abundance ofcaution and
in the interests of fairness, the Court nonetheless will do so. Even assuming that PlaintifTs

objections are properly raised, substantial evidence supports the ALJ's determination of
Plaintiffs RFC, and the RFC is not in violation of the Fourth Circuit's holding Mascio. 780 F.3d
632.

B. The ALJ Gave Appropriate Consideration to Plaintiffs Mental Impairments.

In his objections, Plaintiff claims that "the RFC is contrary to the recent holding in
Mascio V. Colvin. 780 F.3d 632 (4th Cir. 2015)." Doc. 15 at 3. Specifically, Plaintiffcontends
that the ALJ did not adequately consider Plaintiffs difficulties in concentration, persistence, or

pace in the RFC and in the hypothetical questions posed to the vocational expert ("VE"). Id at
4. Plaintiff now also argues that the ALJ "did not explain his decision not to include the

moderate limitations in concentration and persistence [found by state-agency reviewing

physicians Dr. Walter and Dr. Deaver] in his assessment of [PJlaintifTs RFC based upon the
acceptance of Dr. Walter's and Dr. Deaver's opinions." 1^,at 5.
In Mascio. the Fourth Circuit held that the ALJ erred "by ignoring (without explanation)

[the plaintiffs] moderate limitation in her ability to maintain her concentration, persistence, or
pace . . ." 780 F.3d at 633. The ALJ in Mascio found that the plaintiff possessed moderate
limitations in maintaining her concentration, persistence, or pace; however, the hypothetical the

ALJ posed to the VE "said nothing about Mascio's mental limitations." Id. at 637-38. The
Fourth Circuit specified that "an ALJ does not account 'for a claimant's limitations in

concentration, persistence, and pace by restricting the hypothetical question to simple, routine
tasks or unskilled work.'" 14 at 638 (citing Winschel v. Comm'r of Soc. Sec.. 631 F.3d 1176,

1180 (1 Ith Cir. 2011)). The Fourth Circuit went on to note that

Perhaps the ALJ can explain why Mascio's moderate limitation in concentration,
persistence, or pace at step three does not translate into a limitation in Masico's
residual functional capacity. For example, the ALJ may find that the
concentration, persistence, or pace limitation does not affect Mascio's ability to
work, in which case it would have been appropriate to exclude it from the
hypothetical tendered to the vocational expert. But because the ALJ here gave no
explanation, a remand is in order.

Id

District courts in this circuit have thus held that an ALJ satisfies Mascio by providing

detailed discussion of a plaintiffs capacity for concentration, persistence, or pace. See, e.g.,
Sizemore v. Colvin. No. 5:15cv53, 2016 WL 483140, at *3 (W.D.N.C. February 5, 2016); see
also St. Clair v. Colvin. No. 7:13cv00571, 2015 WL 5310777, at *5-7 (W.D. Va. Sept. 11,

2015); see also Mitchell v. Colvin. No. 7:14cv00041, 2015 WL 5690899, at *5-7 (W.D. Va.
Sept. 28, 2015).

Contrary to Plaintiffs arguments, the ALJ's RFC determination is supported by
substantial evidence, and his discussion of Plaintiffs capacity for concentration, persistence, or

pace satisfies the Fourth Circuit's holding in Mascio. 780 F.3d at 638. The ALJ found that

Plaintiff has the RFC "to perform light work as defined in 20 CFR 404.1567(b) involving

frequent crawling, crouching, kneeling, stooping, and climbing on ramps/stairs but only

occasional climbing on ladders, ropes, and scaffolds. The claimant also has a need to avoid more
than occasional interaction with the public and co-workers." R. 501. The ALJ specifically

determined that "with regard to concentration, persistence, or pace, the claimant has very mild
difficulties at most." R. 500. The ALJ engaged in a detailed discussion when determining

Plaintiffs RFC, noting, for example, that Plaintiff is able to manage money, handle bank

accounts, read regularly, obtain a college degree with a 2.98 GPA, interact with family, complete
household chores, drive short distances, volunteer at the Disabled American Veterans facility, go

out to dinner regularly, and participate in programs at his church. S^R. 500-09. When

determining Plaintiffs RFC, the ALJ specifically found that "the claimant's social interaction is
altered compared to years past, [but] the claimant's allegations that he does not want to be

around people and tends to withdraw and isolate is inconsistent with" Plaintiffs activities of
daily living. R. 504. The ALJ also examined Plaintiffs medical records, which "fail to identify
extreme symptoms or any dependence on others." R. 504. Additionally, the ALJ sufficiently
explained his decision to afford moderate weight to the psychological reviewer opinions
concerning Plaintiff's "mental limitations related to concentration, persistence, and pace,"

finding the opinions "superseded by subsequent evidence (i.e. claimant's college degree, as well
as the more recent medical records." R. 504. Therefore, the ALJ assessed Plaintiffs limitations

concerning concentration, persistence, and pace as "very mild difficulties at most." R. 500.

Unlike the ALJ in Mascio. who found that the plaintiff possessed moderate limitations regarding
concentration, persistence, or pace, and who did not explain why he did not incorporate those
limitations into his RFC determination, 780 F.3d at 638, there is no inconsistency here between

the ALJ's assessment of Plaintiffs concentration, persistence, or pace with the ALJ's
determination of Plaintiffs RFC.

In addition. Plaintiff argues that the ALJ "did not include the moderate limitations in

concentration and persistence in his assessment of [Pjlaintiffs RFC," Doc. 15 at 5; however, the

ALJ clearly determined, based on the evidence discussed above, that while Plaintiff possesses
moderate limitations in social functioning, his limitations in concentration and persistence are

"mild," not "moderate." Wliile the reviewing physicians. Dr. Deaver and Dr. Walter, determined
that Plaintiff was moderately limited in concentration, persistence, or pace, see R. 66-67, 79-80,

the ALJ afforded these opinions only moderate weight. R. 504. Affording moderate weight to

opinions finding that a plaintiff suffers from a moderate limitation does not translate into
ultimately finding that a moderate limitation exists. It is entirely logical that by affording only
moderate - not controlling - weight to such opinions, the ALJ determined that Plaintiff suffers
from a mild limitation.

Unlike the ALJ in Mascio. 780 F.3d at 638, the ALJ here explained his reasoning and

incorporated the moderate social limitations and the mild limitations he found regarding
concentration, persistence, or pace into his RFC determination, finding that Plaintiff "has a need
to avoid more than occasional interaction with the public and co-workers." R. 501. Plaintiff

argues that "the ALJ omitted, without explanation, impairments that he found to exist, such as
moderate difficulties maintaining concentration and persistence." Doc. 15 at 5. However, as
discussed above, the ALJ did not find moderate difficulties maintaining concentration and

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persistence. Thus, it is not inconsistent with the Fourth Circuit's holding in Mascio for the ALJ
to exclude these limitations from the hypotheticals he posed to the VE. 780 F.3d at 638. Indeed,
the Fourth Circuit even noted that perhaps the ALJ in Mascio could properly explain why a
limitation he found to exist did not translate into a limitation in the plaintiffs RFC, but the

Fourth Circuit found that the ALJ erred in not so explaining.

Id. Here, however, the ALJ

explained why he found that Plaintiff suffered only mild limitations regarding concentration,

persistence, or pace, and the ALJ also included such limitations stemming from Plaintiffs
moderate social difficulties and mild limitations concerning concentration, persistence, or pace in

his RFC determination. S^R. 501-05. Hence, there is no inconsistency between the ALJ's
assessment of Plaintiffs limitations and the RFC finding.

Additionally, unlike the hypothetical question posed to the VE in Mascio that did not
include limitations that the ALJ had found to exist, the hypothetical questions the ALJ posed

were not inconsistent with the ALJ's findings regarding Plaintiffs social issues and abilities

regarding concentration, persistence, or pace. See R. 553-54. The Fourth Circuit in Mascio
noted that had the ALJ explained why the plaintiffs moderate limitations in concentration,

persistence, or pace did not translate into a limitation in his RFC, it "would have been
appropriate to exclude it from the hypothetical tendered to the vocational expert." 780 F.3d at
638.

Since the ALJ here explained why Plaintiffs limitations regarding concentration,

persistence, or pace were not moderate, he properly excluded any such questions from the
hypotheticals posed to the VE. Additionally, the ALJ did ask hypotheticals that included
limitations he found to exist, such as "occasional interactions with the public, co-workers, and

supervisors[] and working a low stress environment." R. 553. Another hypothetical assumed the
same limitations and further limited the individual to someone who "would be off task more than

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15 percent in a typical workday and will be absent for more than two days a month due to selfisolation." R. 554. Thus, there is no evidence that the ALJ failed to consider Plaintiffs mental

limitations in forming his hypotheticals to the VE.
IV. CONCLUSION

For the reasons discussed above, the Court concludes that even if Plaintiff had properly

raised his objections, substantial evidence supports the ALJ's RFC determination. The Court
notes that it reviewed the parts of the R&R to which Plaintiff did not object and found no clear
error. Accordingly, the Court OVERRULES Plaintiff's objections, Doc. 15, and ADOPTS, in

its entirety, the Magistrate Judge's Report and Recommendation, Doc. 14. The Court DENIES
Plaintiffs Motion for Summary' Judgment, Doc. 9, GIANTS Defendant's Motion for Summary

Judgment, Doc. 11, and AFFIRMS the Recommendation of the Magistrate Judge that the final
decision of the Acting Commissioner be upheld. Plaintiff is advised that he may appeal from

this Opinion and Final Order by forwarding a written notice of appeal to the Clerk of the United
States District Court, United States Courthouse, 600 Granby Street, Norfolk, Virginia 23510.

Said written notice must be received by the Clerk within sixty (60) days from the date of this
Order. If Plaintiff wishes to proceed in forma pauoeris on appeal, the application to proceed in
forma pauperis is to be submitted to the Clerk, United Stales Cotirt of Appeals, Fourth Circuit,
1100 E. Main Street, Richmond, Virginia 23219.

The Clerk is REQUESTED to send a copy of this order to ali counsel of record.
It is so ORDERED.

Ilonry Coke Morgan. Jr.

Senior United Slates District Judge,,
HENR Y COKE MORGAN. JRV
SENIOR UNITED STATES DISTRIC

Norfolk, Virginia

March / h , 2016

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