Biller v. Colvin

Filing 22

MEMORANDUM OPINION. Signed by District Judge Elizabeth K. Dillon on 9/22/2017. (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
HARRISONBURG DIVISION
JENNIFER LYNN BILLER,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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9/22/2017

Civil Action No. 5:16-cv-00014
By: Elizabeth K. Dillon
United States District Judge

MEMORANDUM OPINION
Plaintiff Jennifer Lynn Biller brought this action for review of defendant Nancy A.
Berryhill’s (the commissioner’s) final decision denying her claim for disability insurance
benefits (DIB) under the Social Security Act (the Act). See 42 U.S.C. § 405(g) (2012)
(authorizing a district court to enter judgment “affirming, modifying, or reversing the decision of
the Commissioner of Social Security”). The parties filed cross-motions for summary judgment,
which the court referred to United States Magistrate Judge Joel C. Hoppe for a report and
recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). In his report, the magistrate judge
concluded that substantial evidence supported the commissioner’s decision. (Dkt. No. 19.)
Biller timely filed written objections, and the commissioner filed a response. (Dkt. Nos.
20, 21.) After de novo review of the pertinent portions of the record, the report, and the filings
by the parties, in conjunction with applicable law, the court will adopt the magistrate judge’s
recommendation. Accordingly, defendant’s motion for summary judgment will be granted, and
plaintiff’s motion for summary judgment will be denied.

I. BACKGROUND
The court adopts the recitation of facts and procedural background as set forth in the
report. (Report 3–4, Dkt. No. 19.)
II. DISCUSSION
A. Standard of Review
This court’s review of the administrative law judge’s (ALJ) underlying decision is
limited. Specifically, “[a] district court’s primary function in reviewing an administrative
finding of no disability is to determine whether the ALJ’s decision was supported by substantial
evidence.” Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence does not
require a “large or considerable amount of evidence,” Pierce v. Underwood, 487 U.S. 552, 564–
65 (1988); rather, it requires “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). This is
“more than a mere scintilla of evidence [and] somewhat less than a preponderance.” Laws v.
Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966).
Where, as here, a matter has been referred to a magistrate judge pursuant to 28 U.S.C.
§ 636(b)(1), this court reviews de novo the portions of the report to which a timely objection has
been made. Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de novo any part of the
magistrate judge’s disposition that has been properly objected to.”); United States v. Raddatz,
447 U.S. 667, 673–74 (1980) (finding that de novo review of the magistrate’s report and
recommendation comports with due process requirements).
In order for an objection to trigger de novo review, it must be made “with sufficient
specificity so as reasonably to alert the district court of the true ground for the objection.”
United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007). See also Page v. Lee, 337 F.3d

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411, 416 n.3 (4th Cir. 2003) (“[P]etitioner’s failure to object to the magistrate judge’s
recommendation with the specificity required by the Rule is, standing alone, a sufficient basis
upon which to affirm the judgment of the district court as to this claim.”). Further, objections
must respond to a specific error in the report and recommendation. See Orpiano v. Johnson, 687
F.2d 44, 47 (4th Cir. 1982). General or conclusory objections, therefore, are not proper; they are
in fact considered the equivalent of a waiver. Id. Likewise, an objection that merely repeats the
arguments made in the briefs before the magistrate judge is a general objection and is treated as a
failure to object. Moon v. BWX Techs, 742 F. Supp. 2d 827, 829 (W.D. Va. 2010), aff’d, 498 F.
App’x 268 (4th Cir. 2012) (citing Veney v. Astrue, 539 F. Supp. 2d 841, 844–46 (W.D. Va.
2008)).
Biller raises two objections to the report, and, although they are the same basic arguments
that she made in her brief before the magistrate judge, she points to specific parts of the report
and its reasoning that she believes are incorrect. Thus, the court will apply a de novo standard of
review to the issues raised in her objections.
B. ALJ’s Decision
On November 23, 2015, ALJ Mary Peltzer entered her decision analyzing Biller’s claim,
ultimately concluding that Biller was ineligible for benefits. In reaching her decision, the ALJ
followed the five-step process found in 20 C.F.R. § 404.1520 (2016). The five-step evaluation
asks the following questions, in order: (1) whether the claimant is working or participating in
substantial gainful activity; (2) whether the claimant has a severe impairment of the duration
required by 20 C.F.R. § 404.1509; (3) whether she has a type of impairment whose type,
severity, and duration meets the requirements listed in the statute; (4) whether she can perform
her past work, and if not, what her residual functional capacity (RFC) is; and (5) whether work

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exists for the RFC assessed to the claimant. 20 C.F.R. § 404.1520(a)(4). The claimant bears the
burden of proof at steps one through four to establish a prima facie case for disability. At the
fifth step, the burden shifts to the commissioner to establish that the claimant maintains the RFC,
considering the claimant’s age, education, work experience, and impairments, to perform
available alternative work in the local and national economies. 42 U.S.C. § 423(d)(2)(A).
In this case, Biller met the insured status requirements of the Act and had not engaged in
substantial gainful activity since the alleged onset date of February 15, 2011. (ALJ Decision,
Administrative Record (R.) 83, Dkt. No. 9-1.) At step two, the ALJ found that Biller has the
following severe impairments: diabetes mellitus; spasmodic dysphonia; idiopathic ulnar
neuropathy and peripheral neuropathy; adjustment disorder with depressive mood/major
depressive disorder, and personality disorder. (R. 84.) At step three, the ALJ found that Biller’s
impairments did not meet or medically equal any listed impairments. (Id.) The ALJ specifically
considered several potential listings, including listing 2.09 which deals with speech, but
ultimately concluded that Biller’s voice problems did not satisfy the requirements of listing 2.09.
The ALJ then evaluated Biller’s RFC, considering all of her impairments. This portion of
the ALJ’s decision consists of more than twenty pages and includes an extensive discussion of
Biller’s medical records and the medical opinion evidence. The ALJ limited Biller to light work,
with additional limitations. With regard to restrictions on speaking, the ALJ limited her to tasks
that “involve no talking,” as well as “no contact with the general public, frequent contact with
supervisors, and no tandem work assignments.” (Id. at 86.) Based on her RFC, the ALJ
determined that Biller was not capable of performing her past relevant work. (Id. at 108.)
At step five, the ALJ concluded that Biller’s RFC would allow her to perform jobs that
exist in significant numbers in the national and local economies, including maid services, a non-

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postal mail clerk, and a hand packer. (Id. at 108–09.) The ALJ therefore concluded that Biller
was not disabled and not eligible for SSI. (Id.) In his report, the magistrate judge concluded that
substantial evidence supported the ALJ’s decision. (Report 1.)
C. Biller’s Objections
Biller asserts two objections to the magistrate judge’s report, both of which concern
issues she raised before the magistrate judge, too. First, she argues that the magistrate judge
erred in reasoning that the ALJ was permitted to rely on Biller’s “ability to testify at the
administrative hearing as evidence against her claim that she cannot produce effective speech . . .
.” (Pl.’s Obj. 1, Dkt. No. 20 (quoting Report at 9).) She argues that this was an improper basis
to reject the opinion of Biller’s treating physician that she met Listing 2.09.
The background of this first objection is fairly straightforward. As found by the ALJ,
Biller has at least one severe impairment that affects her ability to speak: spasmodic dysphonia.
She first began experiencing symptoms from this condition in late summer 2010. She was
diagnosed on February 18, 2011, and shortly thereafter, she began treatment with
otolaryngologist Steven A. Bielamowicz. Biller’s treatment and the medical records concerning
her speech impairment, including a surgery, a round of voice therapy sessions, and numerous
notes from medical appointments, are thoroughly documented in the ALJ’s decision, and the
court will not repeat them here.
Dr. Bielamowicz offered an opinion, approximately one week before the ALJ hearing,
that Biller’s impairment satisfied Listing 2.09. (R. 962–64.) The ALJ discounted this opinion,
based primarily on the fact that Biller spoke for more than 20 minutes of the 45-minute hearing
before the ALJ, during which Biller was understandable and spoke at a volume that allowed the
ALJ to hear her and a transcript to be prepared. (R. 107.) The ALJ also reasoned that the

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opinion was not supported by Biller’s treatment history. (R. 91–92, 95–98, 101.) Biller argues
that, in considering Biller’s ability to speak at the hearing, the ALJ effectively substituted her
own opinion for the opinion of Biller’s treating physician. (Pl.’s Obj. 3–5)
As to the second objection, Biller claims that the ALJ erred in giving little weight to the
majority of Biller’s treating physicians. In his report, though, the magistrate judge thoroughly
examined and discussed the reasons that the ALJ assigned each opinion the weight she did, and
discussed why those assignments were not improper and thus why the RFC was supported by
substantial evidence. (Report 12–23.)
The court has carefully reviewed the magistrate judge’s analysis of the substance of the
issues implicated by both objections, the cases cited by the magistrate judge and by Biller in her
objections, and the applicable law. The court concludes, after its de novo review, that the
magistrate judge’s reasoning is well-supported and correct. Thus, the court adopts in full the
magistrate judge’s report and recommendation, and concludes, for the same reasons explained by
the magistrate judge,1 that there is substantial evidence supporting both the ALJ’s determination
that Biller does not satisfy Listing 2.09 and the ALJ’s assignment of various weights to various
medical opinions. Both of Biller’s objections are overruled.
III. CONCLUSION
After a de novo review of the portions of the magistrate judge’s report that Biller objects
to, the court finds that the ALJ’s decision is supported by substantial evidence and that the ALJ
applied the correct legal standards. Accordingly, this court will overrule Biller’s objections and

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There is one minor statement in the report that the court believes requires clarification. The magistrate
judge noted that “at no point did any participant in the hearing request that [Biller] speak up or otherwise
acknowledge a difficulty in understanding her testimony.” (Report at 9.) At one point, though, the ALJ stated that
when the vocational expert “moved the paper,” the ALJ could not hear Biller, and the ALJ asked Biller to repeat part
of her last answer. (R. 32.) This minor reference in the transcript does not change the court’s conclusions, though,
since the hearing otherwise reflects that Biller was understandable throughout the hearing, as explained by the
magistrate judge.

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adopt the magistrate judge’s report and recommendation. The court will therefore grant the
commissioner’s motion for summary judgment and deny Biller’s motion for summary judgment.
An appropriate order will be entered.
Entered: September 22, 2017.

/s/ Elizabeth K. Dillon
Elizabeth K. Dillon
United States District Judge

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