Thomas Dawyot v. Colvin

Filing 27

MEMORANDUM OPINION. Signed by Chief Judge Michael F. Urbanski on 7/24/17. (sas)

IN THE UNITED STA,TES DISTRICT COURT .CLERK'S OFFICE u.s. DIST. COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
AT ROANOKE, VA
.
ROANOKE DIVISION
FILED

JUL 2 4 2017
SCOTT MARSHALL THOMAS DAWYOT, )
)
)
) Civil Action No. 7:15cv676
)
)
) By: Michael F. Urbanski
) Chief United States District .Judge
.
)
)

Plaintiff,

v.
NANCY A. BERRYHILL,
Commissioner of Social Security,
Defendant.

MEMORANDUM OPINION
This social security disability appeal was referred to the Honorable Robert S. Ballou,
United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(B), for proposed findings
of fact and a recommended disposition. The magistrate judge flled a report and
recommendation on June 14,2017, recommending that plaintiff's motion for summary
judgment be denied, the Commissioner's motion for summary judgment be granted and the
Commissioner's final decision be affirmed. Plaintiff Scott Marshall Thomas Dawyot has flled
objections to the report, and this matter is now ripe for the court's

~onsideration.

I.

Rule 72(b) of the Federal Rules of Civil Procedure permits a party to "serve and flle
specific, written objections" to a magistrate judge's proposed findings and recommendations
within fourteen days of being served with a copy of the report. See also 28 U .S.C.

§ 636(b)(1). The Fourth Circuit has held that an objecting party must do so "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.), cert denied, 127 S. Ct. 3032 (2007).
To conclude otherwise would defeat the purpose of requiring
objections. We would be permitting a party to appeal any issue
that was before the magistrate judge, regardless of the nature
and scope of objections made to the magistrate judge's report.
Either the district court would then have to review every issue
in
the
magistrate
judge's
proposed
findings
and
recommendations or courts of appeals would be required to
review issues that the district court never considered. In either
case, judicial resources would be wasted and the district court's
effectiveness based on help from magistrate judges would be
undermined.
Id. The district court must determine de novo any portion of the magistrate judge's report
and recommendation to which a proper objection has been made. "The district court may
accept, reject, or modify the recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b)(3); accord 28

u.s.c. § 636(b)(1),
If, however, a party

"~makes

general or conclusory objections that do not direct the

court to a specific error in the magistrate judge's proposed findings and recommendations,"'
de novo review is not required. Diprospero v. Colvin, No. 5:13-cv-00088-FDW-DSC, 2014
WL 1669806, at *1 (W.D.N.C. Apr. 28, 2014) (quoting Howard Yellow Cabs, Inc. v. United
States, 987 F. Supp. 469, 474 (W.D.N.C. 1997) (quoting Orpiano v. Johnson, 687 F.2d 44, 47
(4th Cir. 1982))). "The court will not consider those objections by the plaintiff that are
merely conclusory or attempt to object to the entirety of the Report, without focusing the
court's attention on specific errors therein." Camper v. Comm'r of Soc. Sec., No. 4:08cv69,
2009 WL 9044111, at *2 (E.D. Va. May 6, 2009), aff'd, 373 F. App'x 346 (4th Cir.), cert.
2

denied, 131 S. Ct. 610 (2010); see Midgette, 478 F.3d at 621 ("Section 636(b)(1) does not
countenance a form of generalized objection to cover all issues addressed by the magistrate
judge; it contemplates that a party's objection to a magistrate judge's report be specific and
particularized, as the statute directs the district court to review only 'those portions of the
report or peczfted proposed findings or recommendations

towhichol?J~ctzon

is made!''). Such

general objections "have the same effect as a failure to object, or as a waiver of such
objection." Moon v. BWX Technologies, 742 F. Supp. 2d 827, 829 (W.D. Va. 2010), aff'd,
498 F . App'x 268 (4thCir. 2012); see also Thomas v. Am, 474 U.S. 140, 154 (1985) ("[I'Jhe
statute does not require the judge to review an issue de novo if no objections are flied").
Additionally, objections that simply reiterate arguments raised before the magistrate
judge are considered to be general objections to the entirety of the report and
recommendation. See Veneyv. Astrue, 539 F. Supp. 2d 841,844-45 (W.D. Va. 2008). As the
court noted in Veney:
Allowing a litigant to obtain de novo review of [his] entire case
by merely reformatting an earlier brief as an objection "mak[es]
the irll.tial reference .to the magistrate useless. The functions of
the district court are effectively duplicated as both the
magistrate and the district court perform identical tasks. This
duplication of time and effort wastes judicial resources rather
than saving them, and runs contrary to the. purposes of the
Magistrates Act." Howard [v. Sec'y of Health & Human Servs.],
932 E2d [505,] D509 [(6th Cir. 1991)].
539 F.

Supp~

2d at 846. Aplaintiffwho reiterates his previously-raised arguments will not be

given "the second bite at the apple []he seeks;" instead, his re-filed brief will be treated as a
general objection, which has the same effect as would a failure to object. Id.

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11.1
Dawyot raised two principal arguments on summary judgment: 1) that the
Administrative Law Judge's (ALJ) residual functional capacity (RFC) determination is not
supported by substantial evidence, because he did not conduct a function-by-function
analysis, specifically as regards Dawyot's fatigue and ability to stoop, and 2) that the ALJ's
credibility findings are not supported by substantial evidence. The magistrate judge
considered these arguments, rejected them, and found substantial evidence supports the
ALJ's determination that there are jobs that exist in significant numbers in the national
economy that Dawyot can perform. Dawyot has objected to the magistrate judge's
conclusions as to each of these arguments.
A.

Dawyot specifically takes issue with the magistrate judge's citation to page 25 of the
administrative record in support of his conclusion that the ALJ properly conducted a
function,by-function analysis in formulating Pawyot's RFC. Dawyot argues:
The Report and Recommendation cites to page 25 in the record
in support of this conclusion. (Dkt. #25, p. 7). On page 25 in
the record, (page 10 of 13 of the ALJ's decision), the ALJ's
entire discqssion is regarding phtintiff's allegations of pain. The
AIJ never discusses plaintiff's allegations of fatigue. (R. 24).
Consequently, the AIJ did not perform a function by
function analysis as required under SSR 96-Sp, in which he
considered plaintiff's fatigue and the Report and
Recommendation etred in concluding the ALJ's finding that
plaintiff is capable of occasionally stooping is supported by
substantial evidence. (Dkt. #25, p. 9) ....

1 Detailed facts aboutDawyot's impairments and medical and procedural history can be found in the report and
recommendai:ion (ECF No. 25) and in the voluminous admirtistrative transcript (ECF No. 11). As such, they will not be
repeated here.

4

Pl.'s Obj., ECF No. 26, at 1-2. As regards stooping, Dawyot likewise argues:
The Report and Recommendation cites to the record at page 25
to support the conclusion that the ALJ properly considered
plaintiffs ability to stoop at the sedentary exertionallevel. (Dkt.
#25, pp. 9-10).
At page 25 of the record (page 11 of 13 of the ALJ's
decision), the ALJ never discusses plaintiffs ability to stoop. (R.
25) ....
Pl.'s Obj., ECF No. 26, at 2.
Notwithstanding Dawyot's assertions to the contrary, the magistrate judge did not
rely solely on page 25 of the administrative record in considering Dawyot's

argum~nt

and

concluding the ALJ properly conducted a function-by-function analysis. Rather, the
magistrate judge summarized the relevant medical evidence, discussed the requirements of
Social Security Ruling 96-8p, and distinguished this case from Monroe v. Colvin, 826 F.3d
176 (4th Cir. 2016), which Dawyot relied upon in his summary judgment brief. Report &
Rec., ECF No. 25, at 4-8. The magistrate judge went on to find that the ALJ properly
considered Dawyot's allegations of fatigue and his complaints of an unsteady gait, weakness,.
and numbness in his right leg, and balance problems. The magistrate judge pointed to
specific portions of the ALJ's opinion and evidence in the record that support the ALJ's
conclusion that Dawyot's fatigue would not impact his ability to work and that Dawyot is
capable of occasional stooping. Report & Rec., ECF No. 25, at 8-10.
Indeed, the ALJ acknowledged Dawyot's complaints of fatigue, weakness, numbness
and an unsteady gait in his opinion (Administrative Record, hereinafter "R." 17-18, 24), and
discussed in detail the voluminous medical evidence of record in this case (R. 17-23). The

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AL] also noted portions of the record that indicate Dawyot exercised regularly, did a great
deal of walking, and had twisted his ankle while caving. (K 24.) The ALJ concluded:
Although the claimant's CVA [Cerebrovascular accident]
resulted in some residuals, the. medical evidence shows
significant improvement in the claimant's condition with
treatment such as medications and physical therapy, Treatment
notes show that the claimant's treating medical experts
discontinued his Coumadin therapy. Physical therapy notes
show marked improvement in the claimant's physical abilities.
The sedentary residual functional capacity herein allows for the
residual effects of these incidents and gives some weight to the
claimant's subjective allegations.

(R. 25.) The ALJ explained that, in so finding, he gave some weight to the determination of
reviewing state agency physicians, including Thomas Phillips, M.D., who assessed Dawyot as
capable of performing light work with limited pushing/pulling with the right lower extremity
and some postural limitations, including occasional stooping. 2 (R. 25; seeR. 100.) However,
"[c]onsidering evidence added at the hearing level and the claimant's subjective allegations,"
the ALJ "further reduced the claimant's residual functional capacity" to a limited range of
sedentary work. (R. 25.)
Additionally, as the magistrate judge recognized, the ALJ gave some weight to
Dawyot's treating physician Dr. Chapmon, who stated in a September 28, 2011 treatment
note that Dawyot was "doing well with home exercise program" and opined that Dawyot

"[p]reviously worked in construction, I think he could return, but may have some work
restrictions." (R. 1284}The AIJ stated: "Considering the claimant's subjective allegations,
the undersigned reduced the claimant to sedentary work, with limited periods of standing.

The court notes that the other reviewing state agency physician Joseph Duckwall, M.D., also determined Dawyot was
capable of performing light work with certain postural limitations, including occasional stooping. (R. 85.)

2

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However, the undersigned notes that the claimant's musculoskeletal exams are essentially
normal." (R. 26.)
There is simply no merit to Dawyot's argument that the magistrate judge erroneously
cited to page 25 of the administrative record in finding the ALJ properly conducted a
function-by-function analysis. As the magistrate judge held, the AIJ's narrative discussionof
the evidence in support of his findings satisfies the requirements of Social Security Ruling
96-Sp, and the AIJ gave a sufficient explanation for why Dawyot's complaints of fatigue did
not impact his ability to work and why he determined Dawyot could occasionally stoop. 3

B.
With respect to the magistrate judge's finding that the ALJ's credibility assessment is
supported by substantial evidence, Dawyot takes issue with the magistrate judge's "failure to
acknowledge that the ALJ erroneously found plaintiff alleged he continuously uses a
motorized cart. (R. 24, Dkt. # 25, p. 12)." Pl.'s Obj., ECF No. 26, at 3. In his summary
judgment brief, Dawyot raised the argument that the ALJ took his statement that he used a
motorized cart out of context, see Pl.'s Br., ECF No. 18, at 33, and the magistrate judge
rejected this argument, concluding the ALJ conducted a proper credibility assessment in this
case. The court finds no error in the magistrate judge's conclusion. Indeed, the ALJ did not
erroneously find that plaintiff alleged he "continuously uses a motorized cart," as Dawyot
claims in his objections. Rather, the ALJ noted that on a recent Adult Function Report,
Dawyot "said he had to use a motorized cart." (R. 24.) This is not an inaccurate statement of

For these same reasons, the court also ;ejects Dawyot's unsupported argument that the "Report and Recommendation
attempts to mine the record for support that plaintiffs fatigue would not impact his ability to work and impermissibly
attempts to building a logical bridge that the ALJ never made in his decision." Pl.'s Obj., ECF No. 26, at 2.

3

7

the record. Dawyot represented that he goes grocery shopping every two weeks for "about
an hour or so" and "use[s] a motorized cart." (R. 288.) The ALJ explained in his opinion that
the medical evidence of record and Dawyot's own statements do not support any need to
use a motorized cart. (R. 24-25.)
Dawyot also argues the magistrate judge "reference[s] that plaintiff stopped wearing
his right ankle-foot AFO [ankle foot orthosis] but ignore[s] the rest of the evidence of
record that conflrms the orthosis broke and plaintiff could not afford to obtain a new AFO.

(R. 62, 1985)." Pl.'s Obj., ECF No. 26, at 4. Again, Dawyot raised. this argument on
summary judgment, contending that the ALJ's use of plaintiffs attempts to walk with
continued difflculty to undermine his credibility is "absurd." Pl.'s Br., ECF No. 18, at 34. As
the magistrate judge explained, the AIJ juxtaposed the medical evidence indicating Dawyot
is able to ambulate without difflculty and was not wearing his AFO-regardless of the
reason-with Dawyot's statement that he used a motorized cart while grocery shopping, in
order to illustrate that Dawyot's "conflicting statements impair his credibility." (R. 24; see
also R. 25.)
Another of those "conflicting statements" is Dawyot's denial of cocaine use to Dr.
Chapman, while Dr. Chapman takes note of the fact that Dawyot had 5 positive urine
screens for cocaine and several for marijuana during the relevant period. (R. 1283-84.)
Additionally, as the magistrate judge noted, Dawyot admitted to using cocaine and to
"regular partying" during a visit to Roanoke Memorial Hospital in December 2010. (R. 555,)
Contrary to Dawyot's contention, the ALJ did not mischaracterize the evidence or
fail to build a logical bridge between the evidence and his conclusions regarding Dawyot's

8

credibility. The magistrate judge correctly held that the ALJ employed the appropriate legal
standard in making his credibility determination. The court finds no error in either the
magistrate judge's report or the ALJ's credibility assessment. Credibility determinations are
emphatically the province of the ALJ, not the court, and courts normally should not
interfere with these determinations. See, e.g., Chafin v. Shalala, No. 92-1847, 1993 WL
329980, at *2 (4th Cir. Aug. 31, 1993) (per curiam) (citing Hays v. Sullivan, 907 F.2d 1453,
1456 (4th Cir. 1990) and Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964)); Melvin v.
Astrue, 6:06 CV 00032, 2007 WL 1960600, at *1 (W.D. Va. July 5, 2007) (citing Hatcher v.
Sec'y of Health & Human Servs., 898 F.2d 21, 23 (4th Cir. 1989)).

III.
At the end of the day, it is not the province of a federal court to make administrative
disability decisions. Rather, judicial review of disability cases is limited to determining
whether substantial evidence supports the Commissioner's conclusion that the plaintiff failed
to meet his burden of proving disability. See Haysv. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990); see also Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). To that end, the court
may neither undertake a de novo review of the Commissioner's decision nor re-weigh the
evidence of record. Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992), Evidence is
substantial when, considering the record as a whole, it might be deemed adequate to support
a conclusion by a reasonable mind, Richardson v. Perales, 402 U.S. 389,401 (1971), or when
it would be sufficient to refuse a directed verdict in a jury trial. Smith v. Chater, 99 F.3d 635,
638 (4th Cir. 1996). Substantial evidence is not a "large or considerable amount of evidence,"
Pierce v. Underwood, 487 U.S. 552, 565 (1988), but is more than a mere scintilla and

9

somewhat less than a preponderance. Perales, 402 U.S. at 401; Laws, 368 F.2d at 642. If the
Commissioner's decision is supported by substantial evidence, it must be aff1tmed. 42 U.S.C.

§ 405(g); Perales, 402 U.S. at 401.
The court has reviewed the magistrate judge's report, the objections to the report,
and the administrative record and, in so doing, made a de novo determination of those
portions of the report to which Dawyot properly objected. The court finds that the
magistrate judge was correct in concluding that there is substantial evidence in the record to
support the ALJ's decision. As such, the magistrate judge's report and recommendation will
be adopted in its entirety.
An appropriate Order will be entered to that effect.

7 _. ?- V - )-.o t-,
(,(1"/~:;: 'lt&,~
Entered:

{)

Michael F. Urbanski
~
Chief United States DistrictJudge

10