Manns v. Colvin

Filing 28

MEMORANDUM OPINION. Signed by Judge Jackson L. Kiser on 8/18/17. (ham)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
DANVILLE DIVISION

AUG 18 2017

NATHANIEL K. MANNS,

)
)
Plaintiff,
)
Case No.: 4:16-cv-00005
)
v.
)
MEMORANDUM OPINION
)
NANCY A. BERRYHILL, Acting
)
By: Hon. Jackson L. Kiser
Commissioner,
)
Senior United States District Judge
)
Defendant.
)
______________________________________________________________________________
Before me is the Report and Recommendation (“R & R”) of Magistrate Judge Joel C.
Hoppe [ECF No. 25], recommending that I deny Plaintiff Nathanial K. Mann’s Motion for
Summary Judgment [ECF No. 15], grant Defendant Nancy Berryhill’s (“the Commissioner”)
Motion for Summary Judgment [ECF No 20], and affirm the Commissioner’s final decision.
Plaintiff filed timely objections to the R & R on July 14, 2017. [ECF No. 26]. The Commissioner
filed a response on July 28, 2017. [ECF No. 27]. For the reasons stated below, I will adopt the R
& R in full and overrule Plaintiff’s objections.
I.

STATEMENT OF FACTS AND PROCEDURAL HISTORY
On October 17, 2012, Plaintiff filed an application for Disability Insurance Benefits

(“DIB”) pursuant to Title II of the Social Security Act. See 42 U.S.C. § 401–434 et seq. Plaintiff
alleged that he was disabled as of September 6, 2012. (Admin. R. at 103, June 20, 2016 [ECF
No. 9] (hereinafter “R.”).) Plaintiff’s application was denied at both the initial and
reconsideration stages. (R. at 103–122.)

On March 19, 2014, a hearing was held before

Administrative Law Judge David Lewandowsky (“the ALJ”). (See R. at 61–102.) Plaintiff
testified as did Barry Hensley, Ed.D, a vocational expert. (See R. at 86–102.)

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The ALJ denied Plaintiff’s application in a written opinion submitted on June 26, 2015.
(R. at 42–60.) The ALJ applied the five-step evaluation process set forth in 20 C.F.R. §§
404.1520(a) and 416.920(a).1 First, the ALJ found that Plaintiff met the insurance requirements
of the Social Security Act and had not engaged in substantial, gainful activity since September 6,
2012. (R. at 47.) Next, the ALJ found that Plaintiff had multiple severe impairments: peripheral
vascular disease and arteriosclerosis, coronary artery disease, foot calluses, right shoulder
arthritis, and asthma. (R. at 47–48.) Plaintiff did not have any impairments that met the severity
of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 47.) Finally,
although Plaintiff could not perform his past, relevant work, the ALJ determined that “[Plaintiff]
has the residual functional capacity to perform light work”2 with the additional limitation that he
“cannot climb ladders ropes and scaffolds” and “should avoid exposure to pulmonary irritants,
wetness, humidity, extreme cold temperatures, and hazards.” (R. at 50.)
The ALJ found that Plaintiff’s testimony was “not entirely credible.” (R. at 56.) For
example, in an application for unemployment benefits, Plaintiff certified that he could work at
least part-time. (R. at 57–58.) The ALJ noted that, although this finding is “not determinative of
disability . . . [it] does serve as evidence that [Plaintiff] was capable of some work activity and
that his symptoms were not as severe and persistent as alleged.” (R. at 58.) More importantly, the
1

The five-step process requires an ALJ to determine: (1) whether the claimant is engaging in substantial
gainful activity, 20 C.F.R. §§ 404.1520(b), 416.920(b); (2) whether the claimant has a “severe”
impairment or combination of impairments, 20 C.F.R. §§ 404.1520(c), 416.920(c); (3) whether the
claimant’s impairments are sufficiently severe as determined by the criteria set forth in 20 C.F.R. Part
404, Subpart P, Appendix 1, 20 C.F.R. §§ 404.1520(d), 404.1525–26, 416.920(d), 416.925–26; (4)
whether the claimant has the residual functional capacity to perform the requirements of their past
relevant work, 20 C.F.R. §§ 404.1520(f), 416.920(f); and (5) whether the claimant is able to do any other
work considering their residual functional capacity, age, education, and work experience. 20 C.F.R. §§
404.1520(g), 416.920(g).
2 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds. . . . [A] job is in this category when it requires a good deal of walking
or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg
controls.” 20 C.F.R. § 404.1567(b).

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ALJ noted that Plaintiff’s testimony regarding his conditions and symptoms did not align with
his medical history. (R. at 57.) Given Plaintiff’s age, education, work experience, and residual
functional capacity, the ALJ determined that there are jobs that exist in significant numbers in
the national economy that Plaintiff could perform, such as non-postal mail carrier, hand
packager, and order clerk. Plaintiff’s request for a rehearing was denied by the Social Security
Administration Appeals Council. (R. at 1–4.)
Plaintiff filed the present action on February 12, 2016 [ECF No. 2], and I referred the
matter to Magistrate Judge Hoppe. The parties filed cross-motions for Summary Judgment [ECF
Nos. 15, 20], and Magistrate Judge Hoppe recommended that I grant the Commissioner’s
Motion, deny Plaintiff’s Motion, and affirm the ALJ’s decision. [ECF No. 25]. Plaintiff entered
five objections. The first four pertain to the apparent mischaracterization of the following
evidence: (1) medical records and testimony regarding Plaintiff’s ability to use his hands; (2)
Plaintiff’s previous application for unemployment benefits; (3) a treatment note from February
2013; and (4) the effect of physical therapy upon Plaintiff’s grip strength. [ECF No. 26]. The
fifth and final objection argues that Judge Hoppe erroneously concluded that the ALJ considered
all of the evidence in reaching his decision. The Commissioner filed her response to Plaintiff’s
objections on March 28, 2017 [ECF No. 27], and this matter is now ripe for review
II.

STANDARD OF REVIEW
I must review de novo any findings by the magistrate judge to which proper objections

have been filed. Fed. R. Civ. P. 72(b). A plaintiff must, however, make specific objections to the
R & R; a plaintiff’s objection cannot simply be mere disagreement with the magistrate’s
conclusions. See Keith v. Astrue, 2012 WL 4458649, at *3 (W.D. Va. Aug. 9, 2012); Veney v.
Astrue, 539 F. Supp. 2d 841, 846 (W.D. Va. 2008) (“Allowing a litigant to obtain de novo review

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of her entire case by merely reformatting an earlier brief as an objection ‘mak[es] the initial
reference to the magistrate useless.’” (quoting Howard v. Sec’y of Health and Human Servs., 932
F.2d 505, 509 (6th Cir. 1991))).
Congress has limited the judicial review I may exercise over decisions of the Social
Security Commissioner. I am required to uphold the decision where: (1) the Commissioner’s
factual findings are supported by substantial evidence, and (2) the Commissioner applied the
proper legal standard. See 42 U.S.C. § 405(g); Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).
The Commissioner is charged with evaluating the medical evidence and assessing
symptoms, signs, and findings to determine the functional capacity of the claimant. 20 C.F.R. §§
404.1527–404.1545. The Commissioner has broad discretion in resolving factual inconsistencies
that may arise during the evaluation of the evidence. 20 C.F.R. §§ 404.1527, 416.927. Unless the
decision lacks substantial evidence to support it, the ultimate determination of whether a
claimant is disabled is for the ALJ and the Commissioner. 20 C.F.R. §§ 404.1527(d), 416.927(d);
Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987). If the ALJ’s resolution of the conflicts in
the evidence is supported by substantial evidence, then I must affirm the Commissioner’s final
decision. See Laws, 368 F.2d at 642. In reviewing the evidence, I must not “undertake to reweigh conflicting evidence, make credibility determinations, or substitute [my] judgment for that
of the [ALJ].” Craig, 76 F.3d at 589.
“Ultimately, the issue before this Court is not whether Plaintiff is disabled, but whether
the ALJ’s determination is reinforced by substantial evidence, and whether it was reached

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through correct application of the law.” Dunn v. Colvin, 973 F. Supp. 2d 630, 638 (W.D. Va.
2013).
III.

DISCUSSION
Plaintiff’s first objection contends that Judge Hoppe and the ALJ mischaracterized

Plaintiff’s testimony pertaining to the use of his hands. (Pl.’s Objs. at 1–2, July 14, 2017 [ECF
No. 26].) As I just mentioned, it is not my place to “re-weigh conflicting evidence, make
credibility determinations, or substitute [my] judgment for that of the [ALJ].” Craig, 76 F.3d at
589. As both Judge Hoppe and the ALJ noted, Plaintiff denied performing “any activities that
require [him] to use [his] arms or [his] legs.” (R. at 85.) Plaintiff then testified that he does not
do “any activities” for his church other than “just say a prayer.” (Id.) It is only after being
confronted with a previous statement from May 2014 that he acknowledged playing drums for
his church every other weekend. (Id.) Judge Hoppe also noted that after being confronted,
Plaintiff downplayed how much drumming he actually did.3 Plaintiff rebuts this by pointing out
that he only stated that he does not use his hands “very often” (Pl.’s Objs. at p. 1), but this was
earlier in the testimony and not specifically related to his church activities. (R. at 73.)
Plaintiff was asked about his activities at church and denied doing any activities aside
from prayer. While no one is accusing Plaintiff of living a double life as a modern Keith Moon,
his lack of candor was properly considered. I must defer to those credibility determinations
absent clear legal error. Plaintiff may be dissatisfied with the judges’ ultimate conclusions, but
neither Judge Hoppe nor the ALJ mischaracterized what was said.
Plaintiff’s second objection relates to Judge Hoppe’s conclusions that the ALJ was
allowed to consider Plaintiff’s previous application for unemployment benefits wherein Plaintiff
3 In responding to a question asking how often he played at a devotional service, Plaintiff responded that “[i]t’s
every Sunday, but, see, they got four choir – different choirs that they do. And it’s just once out of a month for the
men, and I just do it, maybe – sometimes it’s 10 minutes, sometimes it’s 5 minutes.”

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certified that he could work at least part-time. Plaintiff correctly points out that to receive
disability benefits, a claimant must show that they cannot work full-time. Judge Hoppe held,
however, that in the context of other evidence relied upon by the ALJ, there was no error in the
ALJ’s consideration of this evidence. Further, the ALJ noted that “[w]hile receipt of
unemployment benefits is not determinative . . . the fact that the claimant affirmed he was able to
work does serve as evidence that he was capable of some work activity . . . .” (R. at 58.) In other
words, the application for unemployment benefits was not determinative, but it was relevant. I
have also previously noted that an ALJ can consider prior applications for unemployment
benefits so long as there is “sufficient evidence elsewhere in the record to support the ALJ’s
decisions.” Brim v. Berryhill, No. 4:15-cv-57, 2017 WL 1337297, at *4 (W.D. Va. April 11,
2017); see also Cooke v. Colvin, No. 4:13cv18, 2014 WL 4567473, at *17 (W.D. Va. Sept. 12,
2014).
Plaintiff’s third objection relates to Judge Hoppe’s review of treatment notes from early
2013. In this objection, Plaintiff argues that he mistakenly cited to a page where, in February
2013, Plaintiff told his physician, Dr. Henning, that he wished his medication was a “little
stronger.” (R. at 349). Plaintiff says he actually meant to cite to another treatment note from
April 2013 where Plaintiff is recorded as saying that his medication “doesn’t seem to be working
at this time” (R. at 359.) These statements say the same thing: Plaintiff’s medication was not
working as well as he had hoped. Plaintiff argues that this shows that the medication only
provided “minimal improvement” (Pl.’s Br. in Supp. of Mot. for Summ. J., p. 18 [ECF No. 16]),
but this downplays the progress that Plaintiff was making. First, Plaintiff did tell Dr. Henning
that he wished his medication was “a little stronger,” but he also stated that it was “helping
some.” (R. at 349.) Second, Dr. Henning conducted a physical examination and concluded that

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Plaintiff was doing “somewhat better with the exception of his left shoulder he has [sic] pain in
his left shoulder . . . .” (Id.) This undercuts Plaintiff’s assertions that his “complaints of pain and
decreased mobility are consistent throughout the record” (Pl.’s Obj. at 4 [ECF No. 26]) because
Dr. Henning clearly noted that his mobility was improving, albeit slowly. (Pl.’s Obj., p. 4 [ECF
No. 26].)
Plaintiff’s fourth objection is meritless. Plaintiff claims that the R & R misstates the
evidence regarding Plaintiff’s grip strength despite the fact that the R & R quotes directly from
the record. (See R & R at 26.) The R & R refers to the same note, discussed above, from
February 2013. That note states that Plaintiff “has good grip strength good function in the elbow
wrist and hand [sic].” (R. at 349; see also R & R, p. 24 [ECF No. 25].) To rebut this, Plaintiff
cites to an entirely different treatment record from May 2013, where a Physician’s Assistant
(“the PA”) noted that Plaintiff’s grip strength was “slightly improved.” Plaintiff points out that
the PA recommended “continuing [physical therapy]” which “clearly indicated plaintiff
continued to have decreased strength in his hands and wrist.” (Pl.’s Obj at p. 4 [ECF No. 26]; R.
at 398). These treatment records do not conflict. Both show that Plaintiff’s grip strength was
improving with regular physical therapy, so the PA recommended that he continue.
Finally, Plaintiff argues that the R & R failed to find that the ALJ did not properly
consider all of the evidence. Plaintiff claims that while the ALJ summarized the medical
evidence, it does not mean that “the ALJ satisfied his burden to consider all evidence and explain
his evaluation of the evidence in relation to his RFC finding.” (Pl.’s Objs., p. 4 [ECF No. 26].)
Judge Hoppe accurately pointed out, however, that “[the ALJ] thoroughly recited the medical
evidence, including that cited by [Plaintiff] in his brief, and chose to place greater weight on
evidence that suggested more modest limitations.” (R & R, p. 24 [ECF No. 25].) Plaintiff merely

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disagrees with the decision of the Magistrate Judge, but that is not grounds for an objection. As
stated above, it is not my job to reweigh that evidence. The ALJ did not find Plaintiff credible for
two reasons: (1) his subjective statements describing his limitations were not corroborated by his
medical records, and (2) Plaintiff appeared evasive and nonresponsive during his testimony. (R.
at 57–58.) Moreover, Plaintiff does not identify the evidence that was not considered, making
this objection baseless. Accordingly, it was entirely appropriate for the ALJ to place greater
weight on other evidence and for the Magistrate Judge to affirm the ALJ’s findings.
IV.

CONCLUSION

The R & R correctly found that there was substantial evidence in the Record to support
the ALJ’s decision, and the ALJ employed the proper legal standard. I will overrule Plaintiff’s
Objections and adopt the R & R in full. I will deny Plaintiff’s Motion for Summary Judgment,
grant the Commissioner’s Motion for Summary Judgment, and affirm the Commissioner’s
decision.
The clerk is directed to send certified copies of this Memorandum Opinion and the
accompanying Order to all counsel of record and to Magistrate Judge Hoppe.
Entered this 18th day of August, 2017.

s/Jackson L. Kiser
SENIOR UNITED STATES DISTRICT JUDGE

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