Jeffries v. Commissioner of Social Security

Filing 18

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; DENIES as to 11 Motion for Summary Judgment. GRANTS as to 13 Motion for Summary Judgment. ADOPTS as to 15 Report and Recommendations and DISMISSES this civil action WITH PREJUDICE and ORDERS that it stricken from the docket of this Court. Signed by District Judge Irene M. Keeley on 3/26/2014. (Copy counsel of record via CM/ECF)(jmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
AMY DAWN JEFFRIES,

Plaintiff,
v.

CIVIL ACTION NO. 1:12CV162
(Judge Keeley)

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. §636(b)(1)(B), Fed. R. Civ. P. 72(b),
and L.R. Civ. P. 4.01(d), on October 16, 2012, the Court referred
this Social Security action to United States Magistrate John S.
Kaull (“Magistrate Judge” or “magistrate judge”) with directions to
submit

proposed

findings

of

fact

and

a

recommendation

for

disposition.
On January 14, 2014, Magistrate Judge Kaull filed his Report
and Recommendation (“R&R”) (dkt. no. 15), which recommended that
the Court grant the defendant’s motion for summary judgment, deny
Jeffries’ motion for summary judgment, and dismiss this case with
prejudice. He further directed the parties, in accordance with 28
U.S.C. §636(b)(1) and Rule 6(e) of the Federal Rules of Civil
Procedure, to file any written objections with the Clerk of Court
within fourteen (14) days after being served with a copy of the
R&R.

On

January

26,

2014,

plaintiff,

Amy

Dawn

Jeffries

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
(“Jeffries’), through counsel, filed objections to the R&R. (Dkt.
No. 16.) On February 6, 2014, the Commissioner responded to the
objections, (dkt. no. 17), urging the Court to adopt the magistrate
judge’s R&R.
I.
On

March

12,

PROCEDURAL BACKGROUND
2009,

Jeffries

filed

applications

for

Supplemental Security Income (“SSI”) and Disability Insurance
Benefits (“DIB”), alleging a disability onset of December 8, 2008
due to “post-traumatic stress disorder (“PTSD”), diabetes, high
blood pressure, right and left leg pain, left hand pain, high
cholesterol, high triglycerides, kidney problems, anxiety, back
pain, numbness in hand, and headaches.” (R. at 183-95, 219, 223.)
Following the Commissioner’s denial of her applications initially
and on reconsideration (R. at 93-96), Jeffries requested a hearing.
On January 26, 20011, an Administrative Law Judge (“ALJ”) conducted
a hearing at which Jeffries, represented by counsel, and an
impartial

vocational expert (“VE”) appeared and testified. (R. at

47-91.) On March 31, 2011, the ALJ determined that Jeffries was not
disabled. (R. at 26-46.) On September 7, 2012, the Appeals Council
denied Jeffries’ request for review (R. at 25), making the ALJ’s
decision the final decision of the Commissioner. (R. at 1-7.) On
2

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
October 16, 2012, Jeffries timely filed this action seeking review
of that final decision. (Dkt. No. 1.)
II.

PLAINTIFF'S BACKGROUND

On the date of the administrative hearing, Jeffries was
thirty-nine (39) years old (R. at 39, 47), and is considered a
younger person pursuant to 20 CFR 404.1563 and 416.963. She
graduated from high school (R. at 39), and has a relevant work
history that includes employment as an insurance salesperson and
manager. (R. at 224, 526.)
III.
Utilizing
prescribed

in

ADMINISTRATIVE FINDINGS

the

five-step

sequential

the

Commissioner’s

evaluation

regulations

at

20

process
C.F.R.

§§ 404.1520 and 416.920, the ALJ concluded as follows:
1.

Jeffries met the insured status requirements of the
Social Security Act through December 31, 2013;

2.

Jeffries had not engaged in substantial gainful activity
since December 8, 2008, the alleged onset date (20 CFR
404.1571 et seq., and 416.971 et seq.);

3.

Jeffries has the following severe impairments: mild to
moderate degenerative changes of the lumbar spine,
history of cervical strain, history of fracture of the
left metacarpal, history of left knee surgery, bilateral
degenerative arthritis of the knees, obesity, history of
recurrent asthmatic bronchitis, kidney cyst, major
depressive disorder, anxiety disorder, diagnosis of pain
disorder, and PTSD (20 CFR 404.1520(c) and 416.920(c));
3

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
4.

Jeffries does not have an impairment or combination of
impairments that meets or medically equals one of the
listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926);

5.

Jeffries has the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) and
416.967(b) that has an option to sit or stand without
breaking tasks, requires no climbing of ropes, ladders,
scaffolds, kneeling, or crawling and only occasional
performance of other postural movements (i.e., climbing
ramps/stairs, balancing, and stooping), no exposure to
temperature
extremes,
wet
or
humid
conditions,
environmental pollutants, or hazards (e.g., dangerous
moving machinery, (sic) or unprotected heights), has a
low stress environment with no production/assembly line
type of pace and no independent decision making
responsibilities, is unskilled work activity, consisting
of only routine and repetitive instructions and tasks,
and requires no interaction with the general public and
no more than occasional interaction with co-workers and
supervisors;

6.

Jeffries is unable to perform any past relevant work (20
CFR 404.1565 and 416.965);

7.

Jeffries was born on December 8, 1971[,] was 37 years old
on the alleged disability onset date and is considered a
younger individual (20 CFR 404.1563 and 416.963);

8.

Jeffries has at least a high school education and is able
to communicate in English (20 CFR 404.1564 and 416.964);

9.

Transferability of job skills is not material to the
determination of disability because using the MedicalVocational Rules as a framework supports a finding that
Jeffries is “not disabled,” whether or not she has
transferable job skills (See SSR 82-41 and 20 CFR Part
404, Subpart P, Appendix 2);

4

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
10.

Considering Jeffries’ age, education, work experience,
and residual functional capacity, jobs exist in
significant numbers in the national economy that she can
perform (20 CFR 404.1569, 404.1569(a), 416.969, and
416.969(a)); and

11.

Jeffries has not been under a disability, as defined in
the Social Security Act, from December 8, 2008[,] through
the date of this decision (20 CFR 404.1520(g) and
416.920(g)).

(R. at 31-40.)
IV.
A.

OBJECTIONS

Amy Dawn Jeffries
Jeffries

contends

that

the

magistrate

judge

erred

in

concluding that the ALJ had correctly excluded her carpal tunnel
syndrome (“CTS”) and kidney condition as severe impairments when he
made his residual functional capacity (“RFC”) assessment. She also
contends that the evidence of record does not substantially support
the

ALJ’s

determination

that

she

lacked

credibility,

or

his

decision to assign little weight to the RFC opinion of Dr. Vonda
McElwain (“Dr. V. McElwain”), and the functional assessment of Dr.
Joseph. Finally, she contends that the magistrate judge erred in
agreeing with the Appeals Council’s decision not to remand the case
to the ALJ on the basis of material evidence of CTS and new
evidence of fibromyalgia. (Dkt. No. 16.)

5

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
B.

Response of Commissioner of Social Security
The Commissioner contends that the record contains substantial

evidence to support the ALJ’s evaluation of Jeffries’ CTS, kidney
impairment, credibility, and medical evidence. He further contends
that the ALJ correctly determined that the Appeals Council did not
err in failing to remand the case on the basis of “material
evidence” of CTS or “new” evidence of fibromyalgia. (Dkt. No. 17.)
V.

MEDICAL EVIDENCE

For purposes of this review, the Court incorporates and adopts
the magistrate judge’s discussion of the medical and non-medical
evidence contained in the R&R. (Dkt. No. 15 at 2-27.)
VI.
A.

DISCUSSION

Scope of Review
In reviewing an administrative finding of no disability, the

scope of review is limited to determining whether “the findings of
the Secretary are supported by substantial evidence and whether the
correct law was applied.”
(4th Cir. 1990).

Hays v. Sullivan, 907 F.2d 1453, 1456

Substantial evidence is “such relevant evidence

as a reasonable mind might accept to support a conclusion.”
Richardson

v.

Perales,

402

U.S.

389,

401

(1971)

(quoting

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
6

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
Elaborating on this definition, the Fourth Circuit has stated that
substantial evidence “consists of more than a mere scintilla of
evidence but may be somewhat less than a preponderance. If there is
evidence to justify a refusal to direct a jury verdict were the
case before a jury, then there is ‘substantial evidence.’” Shively
v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v.
Celebrezze, 368 F.2d 640, 642 (4th Cir. 1968)).

In reviewing the

Commissioner’s decision, the reviewing court must also consider
whether the ALJ applied the proper standards of law. “A factual
finding by the ALJ is not binding if it was reached by means of an
improper standard or misapplication of the law.” Coffman v. Bowen,
829 F.2d 514, 517 (4th Cir.
B.

1987).

Carpal Tunnel Syndrome
Jeffries contends that the record lacks substantial evidence

to support the ALJ’s decision that, because her CTS did not cause
any limitations of the use of her hands or wrists, it was not a
severe impairment. She also argues that the Appeals Council should
have remanded the case to the ALJ based on the new and material
evidence of treatment and surgery for CTS that she submitted after
the ALJ’s decision. (Dkt. No. 11 at 3.)

7

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
With regard to Jeffries’ hand and wrist complaints, the ALJ
determined:
The record contains a diagnosis of bilateral carpal
tunnel syndrome; however, there is no electromyography
(“EMG”) to confirm the presence of this condition.
Further, as discussed, below, while the claimant has
complained of numbness in her hands and arms, the
physical findings are inconsistent with carpal tunnel
syndrome. Indeed, she had negative Tinel and Phalen
signs, and she has 5/5 strength in her upper extremities.
Exhibits 17F and 32F. To give the claimant the utmost
benefit of the doubt, the undersigned finds that this is
a medically determinable impairment, but that it is
nonsevere with no associated functional limitations.
(R. at 32.)
At

step

required to

two

of

the

sequential

evaluation,

Jeffries

was

provide proof of a severe impairment. Grant v.

Schweiker, 699 F.2d 189, 191 (4th Cir. 1983).

Mere diagnosis of a

condition is insufficient to prove disability; there must be a
showing of related functional loss. See Gross v. Heckler, 785 F.2d
1163, 1165 (4th Cir. 1986). “The severity standard is a slight one
in this Circuit.”

Stemple v. Astrue, 475 F. Supp. 2d 527, 536 (D.

Md. 2007). An impairment is severe “unless it has such minimal
effect on the individual that it would not be expected to interfere
with

the

individual’s

ability

to

work,

irrespective

of

age,

Evans v. Heckler, 734 F.2d 1012,

education, or work experience.”

8

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
1014 (4th Cir. 1984) (internal citation and quotation omitted)
(emphasis in original); see also 20 C.F.R. §§ 404.1521(a)(“An
impairment . . . is not severe if it does not significantly limit
your physical or mental ability to do basic work activities.”).
As the magistrate judge noted in the R&R, the record includes
an EMG performed in 2005, following Jeffries’ auto accident in
2004. The EMG indicated bilateral CTS, worse on the left. (R.368.)
The doctor who read the EMG noted the presence of “compression of
her carpal volar ligaments and positive Tinel’s and Phalen’s
signs,” and recommended carpal tunnel release with decompression of
the nerve. He scheduled the surgery for September of that year but,
following

Workers’ Compensation’s denial for payment, the surgery

did not occur. (Dkt. No. 15 at 38.)
Despite this, the more recent evidence in the record documents
that Jeffries has no manipulative limitations and possesses good
strength in her hands. (See R. 549, 571-74, 657-58.) In particular,
the magistrate judge noted:
In 2004 at the time of her accident, Dr. Grady indicated
Jeffries had CTS that resulted in “some sensory
abnormality of the right hand” and “some residual
posttraumatic tendinitis and impairment of the thumb,”
also on the right hand (dkt. no. 15 at 38).
The R&R also referenced the following evidence in the record:
9

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION

1.

An October 14, 2005 report, in which Dr. Grady indicated
that Jeffries had “slightly decreased range of motion of
the right hand” and no “residual problems” from her left
long finger fracture (R. at 461);

2.

A May 13 2009 report, in which Dr. Sabio indicated that
Jeffries complained only that her right hand got numb “on
and off.” His examination revealed full strength in the
upper extremities and normal fine manipulation, handgrips
measured at 18 Kg on the right and 6 Kg on the left and
no diagnosis of CTS or any hand, wrist, or arm disorder.
(R. at 549);

3.

A May 28, 2009 Physical Residual Functional Capacity
Assessment, in which Dr. Morgan indicated that Jeffries
could occasionally lift and carry 50 pounds, could
frequently lift and carry 25 pounds, and had no
manipulative limitations. (R. at 552-59);

4.

An August 13, 2009 Physical Residual Functional Capacity
Assessment, in which Dr. Franyutti indicated that
Jeffries could occasionally lift and carry 20 pounds,
could frequently lift and carry 10 pounds, and had no
manipulative limitations. (R. at 571-74); and

5.

A September 17, 2010 report, in which Dr. Luke McElwain
(Dr. L. McElwain) indicated that Jeffries complained of
her right hand “going numb” and noted that she could move
her extremities “well” and had good strength, normal
sensation, negative Tinel’s and Phalen’s signs, and a
diagnosis of intermittent paresthesias1 in her hands. (R.
at 657-58.)

1

An abnormal touch sensation, such as burning, prickling, or
formication, often in the absence of an external stimulus.
Dorland’s Illustrated Medical Dictionary (“Dorland’s”), p. 1383
(32d ed. 2011).
10

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
Accordingly, the magistrate judge concluded that, although the
record does contain an EMG from 2005 indicating the presence of
bilateral CTS, more recent medical evidence in the record was
compelling and established that Jeffries does not have residual
manipulative limitations, and possesses good strength in her hands.
(Dkt. No. 15 at 39.) The magistrate judge’s conclusion that
Jeffries failed to meet her burden of demonstrating that her CTS
resulted in a functional loss sufficient to limit her ability to
perform work related activities therefore is not erroneous.

See

Gross, 785 F.2d at 1165; Grant, 699 F.2d at 191.
C.

Kidney Disease/Calcinosis
Jeffries next contends that the evidence in the record does

not support the magistrate judge’s conclusion that substantial
evidence supports the ALJ’s decision not to include her chronic
kidney disease or kidney calcinosis as a severe impairment in his
RFC analysis. She argues that the ALJ should have included her need
for additional bathroom breaks in his consideration of her RFC.
(Dkt. No. 16 at 16.)
An RFC represents the most a claimant can do in a work setting
despite

her

physical

and

mental

limitations.

20

C.F.R.

§§ 404.1545(a)(1); 416.945(a)(1). “RFC is an assessment of an
11

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
individual’s ability to do sustained work-related physical and
mental activities in a work setting on a regular and continuing
basis” for “8 hours a day, for 5 days a week, or an equivalent work
schedule.”

Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184,

at *1 (July 2, 1996).
When

assessing

a

claimant’s

RFC,

the

Social

Security

Administration (“the Administration”) bases its assessment on “all
the

relevant

evidence”

in

the

case

record.

20

C.F.R.

§§ 404.1545(a)(1); 416.945(a)(1). This assessment, however, only
includes the “functional limitations and restrictions that result
from

an

individual’s

medically

determinable

impairment

or

combination of impairments, including the impact of any related
symptoms.”

SSR

96-8p,

at

*1.

Importantly,

although

the

Administration is responsible for making the RFC assessment, the
claimant has the burden of proving her RFC. See Hunter v. Sullivan,
993 F.2d 31, 35 (4th Cir. 1993) (per curiam) (citing Grant v.
Schweiker, 699 F.2d 189, 191 (4th Cir. 1983)) (claimant has the
burden of production and proof through the fourth step of the
sequential

analysis);

see

also

20

C.F.R.

§§

404.1545(a)(3);

416.945(a)(3) (claimant is responsible for providing evidence to be
used to develop RFC).
12

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
Despite Jeffries’ argument to the contrary, the evidence
establishes that the ALJ did include Jeffries’ kidney cyst as a
severe impairment. (R. at 31.) Moreover, regarding her kidney
calcinosis, he stated:
In August 2009, the claimant underwent a renal
ultrasound, which showed no renal obstruction. However,
there was a complicated cyst in the right kidney as well
as non-obstructing stones in the left kidney. . . .
These findings were somewhat confirmed by a CT scan of
the abdomen and pelvis. . . . In September 2009, the
claimant followed up for her kidney condition with the
Rural Health Clinic, seeking Lortab for pain allegedly
associated with the kidney stones.
The claimant was
refused this medication. . . .
In October 2009, the
claimant presented to Dr. N. Guirguis, M.D., at the
Kidney Center for an evaluation of her kidney condition.
He opined that the claimant’s condition mirrored the
presentation of tumoral calcinosis, and he recommended a
complete work-up.
(R. at 35-36.)
In

his

review

of

the

evidence,

the

magistrate

judge

specifically referenced the treatment with medication and lab work
between 2009 and 2010 that Jeffries received from Dr. Guirguis, her
nephrologist. (Dkt. No. 15 at 13-17), (R. at 613-14, 618-19, 76162, 764.) On October 22, 2009, Dr. Guirguis specifically noted that
Jeffries could experience “pain similar to kidney stones in absence
of actual stones” because of her kidney condition (R. at 598.)
Furthermore, his notes from a number of examinations of Jeffries
13

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
indicate that her kidneys were normal. (R. at 615, 622, 643, 652.)
To the issue at hand, however, the magistrate judge noted the
absence of any notation in the record from Dr. Guirguis that
Jeffries needed an excessive number of bathroom breaks during a
day, or that the number of times she used the bathroom in a day was
excessive. (Dkt. No. 15 at 41.)
The evidence supports the conclusion that Jeffries failed to
establish a need for additional bathroom breaks. Therefore, there
is

substantial

evidence

in

the

record

supporting

the

ALJ’s

evaluation of Jeffries’ kidney condition and assessment of her RFC.
See Hunter, 993 F.2d at 35.
D.

Credibility Analysis
Jeffries next contends that the magistrate judge erred in

finding that the record contained substantial evidence to support
the ALJ’s analysis at step one of the two prong analysis found in
Craig v. Chater, 76 F.3d 585 (4th Cir. 1996).
In the seminal case of Craig v. Chater, 76 F.3d 585 (4th Cir.
1996),

the

Fourth

Circuit

established

a

two-prong

test

for

evaluating a claimant’s subjective complaints of pain. The first
prong requires an ALJ to determine whether the objective evidence
of record establishes the existence of a medical impairment, or
14

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
impairments

resulting

from

anatomical,

physiological

or

psychological abnormalities that could reasonably be expected to
produce the pain or other symptom alleged. Id. at 594. Under the
second prong, an ALJ must “expressly consider” whether a claimant
has such an impairment. Id. at 596. If a claimant satisfies these
two

prongs,

an

ALJ

then

must

evaluate

the

“intensity

and

persistence of the claimant’s pain, and the extent to which it
affects her ability to work.” Id. at 595. In this evaluation, an
ALJ must consider
not only the claimant’s statements about her
pain, but also ‘all the available evidence,’
including the claimant’s medical history,
medical signs, and laboratory findings . . .
and any other evidence relevant to the
severity of the impairment, such as evidence
of the claimant’s daily activities, specific
descriptions of the pain, and any medical
treatment taken to alleviate it.
Id.
Prior to Craig, in Shively v. Heckler, 739 F.2d 987, 989-90
(4th Cir. 1984), the Fourth Circuit held that, “[b]ecause he had
the opportunity to observe the demeanor and to determine the
credibility of the claimant, the ALJ’s observations concerning
these questions are to be given great weight” (citing Tyler v.
Weinberger, 409 F.Supp. 776 (E.D. Va. 1976)).
15

Once made, an ALJ’s

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
credibility determination will be reversed only “if the claimant
can show it was ‘patently wrong.’”

Powers v. Apfel, 207 F.3d 431,

435 (7th Cir. 2000) (quoting Herr v. Sullivan, 912 F.2d 178, 181
(7th Cir. 1990)).
Here, the magistrate judge determined that, even though the
ALJ did not quote the exact language of Craig, his statement “that
the claimant’s medically determinable impairments could reasonably
be expected to cause some of the alleged symptoms . . . .”
satisfied the first prong of Craig. (R.35.) The ALJ then proceeded
to the second prong of Craig, and evaluated the intensity and
persistence of Jeffries’ pain, and the extent to which it affected
her ability to work.
It is here that Jeffries argues that the ALJ’s finding is
“based on factual errors and significant omissions.”

(Dkt. No. 16

at 4.) She contends that he failed to consider the following
evidence of record:
1.

A more convincing source of back pain than the X-ray
showing minor degenerative changes of the lumbar spine,
and the X-ray showing mild to moderate degenerative
changes with suspected spondylolysis at L5. That evidence
consists of the statement and records of Dr. Guirguis
confirming Jeffries’ kidney disease as a source of pain.
(R. at 35-36);

16

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
2.

a) The lack of medical insurance and “scarce resources”
as the cause of the lapse in her treatment because she
was not awarded Medicaid until April 30, 2009. (R. at
522-523);
b) Two consultative examinations for DDS in May, 2009,
[R. at 524, 546] and treatment at Rural Health Clinic in
Webster Springs in June, 2009. (R. at 564);
c) The prescription from Guirguis for narcotics after his
evaluation and diagnoses, and later by the clinic
physicians. (R. at 656, 731, R. at 35);

3.

The objective evidence supporting the diagnoses of
diabetes mellitus, hypertension, dyslipidemia, anxiety,
chronic back pain, right upper extremity neuropathy, and
bronchitis by the Rural Health Clinic. (R. at 35);

4.

The
objective
clinical
evidence
of
crepitance,
tenderness, and limitation of motion of the knees from
Dr. Sabio, as well as the X-ray of the left knee. (R. at
546-550);

5.

The evidence of treatment throughout the time of the
claim by Dr. Guirguis on 10/8/09, 10/22/09, 12/15/09,
1/5/10, 4/20/10, 9/13/10, 1/25/11. (R. at 599-611, 612637, 638-652, 759-760, 761-773); office visits at the
Rural Health Clinic on 6/30/09, 7/28/09, 8/20/09,
8/27/09, 9/30/09, 3/24/10, 4/16/10, 7/16/10, 9/17/10,
10/12/10; a colonoscopy and gall bladder surgery in
November and December 2010 (R. at 754-758); visits to the
clinic on 1/20/11 (R. at 560-569, 584-595, 653-671, 730743, 744, 745-753);

6.

Mental health treatment from her primary care physicians
at Rural Health Clinic, who prescribed Xanax, Cymbalta,
and Amitriptyline. (R. at 585-6);

7.

Her statement in January, 2011 to her treating physician,
Dr. V. McElwain, that she was doing well actually related
to the fact that she had recuperated from recent
17

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
gallbladder
surgery
with
complete
relief
gastrointestinal symptoms. (R. at 744); and
8.

of

The evidence that the advice from her physicians to lose
weight and stop smoking because she had been reported as
morbidly obese since at least 1999, when she weighed 285
pounds, was impossible to follow because appetite
suppressants had been ineffective for her (R. at 701),
and her kidney diet conflicted with her diabetic diet,
thus making it difficult to manage her diet and lose
weight as well. (R. at 60.)

The record however, actually establishes that the ALJ did
consider all of this evidence. His decision notes the following:
[T]he claimant underwent an x-ray of her lumbar spine
which showed only minor degenerative changes of the
lumbar spine. . . . Obviously, this is inconsistent with
the claimant’s allegations of severe back pain of an
eight of ten in terms of severity.
The consultative examination occurred during what appears
to be another significant gap in the claimant’s
treatment. Indeed, after her March 2009 visit at the
Rural Health Clinic, the claimant did not have another
visit until June 2009 when she presented again at the
Rural Health Clinic, seeking to establish a physician.
At that time, the claimant complained that she “just
hasn’t felt well for the past few weeks,” again,
suggesting that the claimant did not experience
significant symptoms prior to that time. During that
visit, the claimant was diagnosed with diabetes mellitus,
hypertension, dyslipidemia, anxiety, chronic back pain,
right upper extremity neuropathy, and bronchitis. It is
noted, however, that these diagnoses were based nearly
entirely on the claimant’s subjective complaints, and it
is also noted that the claimant’s treating physician
declined to prescribe the claimant any narcotic
medications for pain. . . .

18

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
In July 2009, the claimant underwent an x-ray of the left
knee, which showed only mild osteoarthritis.
(R. at 35.)
Significantly, the ALJ’s review noted that, in his office
notes, Dr. Guirguis did not identify Jeffries’ kidney disease as a
source of her back pain. In fact, in a note dated October 22, 2009,
he indicated that her complaints of back pain, tender bones, and
lost height suggested “underlying osteopenia.” (R. at 597.)
Furthermore, as the magistrate judge noted in the R&R, the
record contains no medical evidence to support Jeffries’ contention
that her kidney disease was a source of her back pain. (dkt. no. 15
at 46.) The treatment notes from Rural Health Clinic dated June 30,
2009, regarding back pain were based solely on Jeffries’ subjective
complaints made during her appointment to establish a primary care
physician. (R. at 563-64.)
Review of Dr. Sabio’s consultative examination dated May 13,
2009, documents that Jeffries had “tenderness of both knees with
crepitus on movement,” and that she could not extend her knees
bilaterally “due to pain and stiffness in both knees.” (R. at 5489.) However, in March, 2010, Dr. V. McElwain reported that Jeffries
had no complaints of pain in her legs. (R. at 36.) Although

19

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
Jeffries argues that her comment in January, 2011 to Dr. V.
McElwain that she was “doing great” related only to her recovery
from recent gallbladder surgery, the evidence is undisputed that
the report of the office visit contains no mention of complaints of
knee pain, nor does Dr. V. McElwain note any crepitus, tenderness,
or limitation of movement upon examination. (R. at 744.)
Jeffries next argues that the ALJ failed to note the mental
health treatment she received from her primary care physicians at
the Rural Health Clinic. The record contains no evidence that
Jeffries had “a longitudinal history of mental health treatment
since the alleged onset date of disability,” which is a “factor
that the ALJ noted detracts from the credibility of her allegations
concerning the severity of her symptoms.” (R. at 36.)
Moreover, despite her mental health complaints, the record
contains no evidence that Jeffries had attended “mental health
treatment since the alleged onset of disability.” (R. at 37.)
Furthermore, even though the magistrate judge noted a diagnosis of
depression from her primary care physicians at the Rural Health
Clinic, for which they prescribed Xanax in August 27, 2009, (R. at
585), Jeffries reported the Xanax was controlling her anxiety. (R.
at 586.)
20

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
Jeffries also disagreed with the ALJ’s determination that her
“apparent ambivalence and lack of motivation to follow through with
medically advised treatment” undermined her credibility.
37.)

(R. at

Specifically, the ALJ stated:
Unfortunately, many of the claimant’s severe impairments
are likely the result of her failure to properly take
care of herself. She was urged by her physicians to lose
weight and quit smoking, but she declined to do so. The
claimant’s failure to heed her physician’s warnings is
not indicative of a good faith desire to improve her
health so as to facilitate a return to the workforce and
contraindicates any intractable disability.

(Id.)
He

noted

that

the

medical

evidence

of

record

contained

numerous directives to Jeffries to lose weight and stop smoking. He
further noted that, on May 13, and June 30, 2009, Jeffries weighed
276 pounds (R. at 548, 563); on March 24, 2010, she weighed 292
pounds (R. at 663-64); on July 16, 2010, she weighed 274 pounds (R.
at 659); on September 17, 2010, she weighed 278 pounds (R. at 65758); and at her hearing, she weighed 280 pounds. (R. at 60.) Thus,
despite being told by her physicians to lose weight, Jeffries
remained morbidly obese and her weight changed only slightly from
the alleged disability onset date until the ALJ’s decision.

21

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
Furthermore, as the magistrate judge noted, the record also
contains no objective evidence to support Jeffries’ allegation that
she was unable to lose weight due to a conflict between her kidney
diet and her diabetic diet. Therefore, the magistrate judge’s
conclusion that the ALJ considered Jeffries’ statements regarding
her efforts to lose weight when he weighed her credibility is not
erroneous. See 20 C.F.R. §§ 404.1529(c)(1)-(4), 416.929(c)(1)-(4).
The

medical

evidence

of

record

also

documents

numerous

occasions on which Jeffries was advised to stop smoking. (R. at
585, 663-64, 731, 734-35, 744.) In Gordon v. Schweiker, 725 F.2d
231,

236

(4th

Cir.

1984),

the

Fourth

Circuit

held

that

the

Commissioner can only “deny the claimant benefits because of
alcohol or tobacco use if she finds that a physician has prescribed
that the claimant stop smoking or drinking and the claimant is able
voluntarily to stop.” As to this, the magistrate judge concluded
that the ALJ should not have relied on the evidence that Jeffries
continued to smoke, because a finding that she could voluntarily
stop smoking had not been made.
Nevertheless, he determined that this error did not affect the
ALJ’s credibility determination because, as already noted, the
record is replete with objective medical evidence documenting
22

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
Jeffries’ contradictory statements about her pain and symptoms.
See

Morgan v. Barnhart, 142 F. App’x 716, 723 (4th Cir. 2005)

(quoting Ngarurih v. Ashcroft, 371 F.3d 182, 190 n.8 (4th Cir.
2004)).
It is clear that the magistrate judge thoroughly considered
the ALJ’s evaluation of all of the evidence of record, including
Jeffries’ activities of daily living, her statements about the
location, duration, frequency, and intensity of her pain, the
precipitating and aggravating factors that caused her pain, the
treatment

she

underwent

to

mitigate

pain,

and

other

factors

relative to her condition, and therefore complied with both Craig
and 20 C.F.R. § 404.1529(c)(3). The magistrate judge’s conclusion
that the record contains substantial evidence supporting the ALJ’s
credibility determination is not erroneous.
E.

Weight Assigned to the Opinions of Drs. V. McElwain and Joseph
Jeffries asserts that the ALJ erred in assigning little weight

to the functional assessments completed by her treating physician,
Dr. V. McElwain, and examining psychologist, Dr. Joseph. (Dkt. No.
16 at 4-5). “Although it is not binding on the Commissioner, a
treating physician’s opinion is entitled to great weight and may be
disregarded only if persuasive contradictory evidence exists to
23

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
rebut it.”

Craig, 76 F. 3d at 589.

The treating physician’s

opinion should be accorded great weight because “it reflects an
expert judgment based on a continuing observation of the patient’s
condition over a prolonged period of time.” Mitchell v. Schweiker,
699 F.2d 185, 187 (4th Cir. 1983).
In Craig, however, the Fourth Circuit held:
Circuit precedent does not require that a
treating physician’s testimony “be given
controlling weight.” Hunter v. Sullivan, 993
F.2d 31, 35 (4th Cir. 1992). In fact, 20
C.F.R. §§ 404.1527(c)(2) and 416.927(d)(2)
(emphasis added) both provide,
[i]f we find that a treating
source's opinion on the issue(s) of
the nature and severity of [the]
impairment(s) is well supported by
medically acceptable clinical and
laboratory diagnostic techniques and
is not inconsistent with the other
substantial evidence in [the] case
record, we will give it controlling
weight.
[4,5]
By
negative
implication,
if
a
physician's opinion is not supported by
clinical evidence or if it is inconsistent
with other substantial evidence, it should be
accorded significantly less weight.
76 F.3d at 590.

Furthermore, “[n]either the opinion of a treating

physician nor the determination of another governmental entity are

24

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
binding on the Secretary.”

DeLoatch v. Heckler, 715 F.2d 148, 150

n.1 (4th Cir. 1983).

1.

Dr. Vonda McElwain

Jeffries contends that the opinion of Dr. V. McElwain should
have been assigned controlling weight because she was the only
examining medical practitioner to provide a functional assessment
during the period at issue, and because her opinion is consistent
with Jeffries’ statements and testimony, and with the record.
(Dkt. No. 16 at 4.) After reviewing Dr. V. McElwain’s January, 2011
functional assessment, the ALJ assigned it “little weight,” noting:
Dr. McElwain served as the claimant’s treating physician
since March 2010, but she examined the claimant
infrequently. It does not appear that she conducted any
extensive testing to gauge the severity of the claimant’s
complaints. Indeed, Dr. McElwain noted on multiple
occasions that she wanted the claimant to undergo
electromyography (“EMG”), but there is no evidence that
this ever occurred. . . . Further, her report is so
contradictory as to suggest that she placed very little
thought into her evaluation. In fact, Dr. McElwain
inexplicably opined that the claimant was capable of
light exertional work, but that she was incapable of
sedentary exertional work. Dr. McElwain indicated the
claimant had difficulty with numbness in the upper
extremities, but she admitted that the claimant had not
been evaluated with an EMG. Dr. McElwain opined that the
claimant was capable of performing full-time work as of
25

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
December 31, 2008 (a date near the time of the claimant’s
alleged onset date of disability), but she declined to
offer an opinion as to when the claimant became incapable
of full-time work. Overall, Dr. McElwain’s opinion does
not reflect a thoughtful review of the record and is of
little value to the trier of fact.
(R. at 38.)
While Mitchell held that a treating physician’s opinion should
be afforded great weight because “it reflects an expert judgment
based on a continuing observation of the patient’s condition over
a prolonged period of time, 699 F.2d at 187,” the record here
establishes that Dr. V. McElwain actually examined Jeffries only
three times in the time period immediately before she completed the
functional capacity form - March, 2010, October, 2010, and January,
2011 - and did not schedule Jeffries for any further examinations.
Accordingly, the magistrate judge’s conclusion that there was no
“continuing observation” of Jeffries’ conditions “over a prolonged
period of time” is not erroneous.
The magistrate judge also agreed with the ALJ’s assignment of
“little weight” to Dr. V. McElwain’s functional assessment, noting
that the January 22, 2011 Primary Care Physician Questionnaire was
in a “check off” form, which has been referred to by other courts
as “weak evidence at best.”

See, e.g., Mason v. Shalala, 994 F.2d

26

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
1058, 1065 (3d Cir. 1993) (“Form reports in which a physician’s
obligation is only to check a box or fill in a blank are weak
evidence at best.”). Mason has been cited with approval by a number
of district courts within the Fourth Circuit. See, e.g., Wright v.
Astrue, 2013 WL 275993, at *5 (W.D. Va. Jan. 24, 2013); McGlothlen
v. Astrue, 2012 WL 3647411, at *6 (Aug. 23, E.D.N.C. 2012); Bishop
v. Astrue, 2012 WL 951775, at *3 n.5 (D.S.C. Mar. 20, 2012).
Moreover, even though asked to identify the clinical findings and
laboratory testing supporting her evaluation, Dr. V. McElwain
failed to specifically note any testing, and simply referenced
“labs, specialist consults, imaging.”
Dr. V. McElwain indicated on the form 1) that Jeffries could
not perform heavy, medium, or sedentary work but could perform
light work; 2) that Jeffries must alternate positions frequently
and could only sit, stand, and walk for approximately one hour at
a time; 3) that Jeffries would only be able to be on her feet two
to three hours of an eight-hour period; and 4) that Jeffries would
only be able to sit upright two to three hours in an eight-hour
period, should recline throughout the day with her feet up, would
need frequent rest periods, and could occasionally climb, balance,
stoop and bend, kneel, crouch, crawl, stretch, reach, and squat.
27

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
She further opined that Jeffries would experience both chronic
moderate pain, and severe intermittent pain from her impairments,
could never use her right and left hands for grasping, handling,
fingering, or doing fine manipulations, and

would not be capable

of performing a full-time job and had been unable to do so since
December 31, 2008. (R. at 753.)
The magistrate judge noted that Dr. V. McElwain’s form opinion
was inconsistent with her own office visit notes, as well as other
evidence in the record. He specifically noted her January 20, 2011
office note, written just two days before she completed the form
questionnaire, that indicated Jeffries had reported she was “doing
great.” (R. at 744.) Furthermore, her office notes reflect no
complaints from Jeffries regarding pain when sitting, standing,
walking, or using her right and left hands.
Importantly, the record also reflects that Dr. V. McElwain’s
opinion is inconsistent with those of the state agency reviewing
physicians, Dr. Sabio and Dr. Morgan. 20 C.F.R. § 1527(f)(2)(I)
provides:
Administrative law judges are not bound by any findings
made
by
State
agency
medical
or
psychological
consultants,
or
other
program
physicians
or
psychologists.
However,
State
agency
medical
or
psychological consultants, or other program physicians or
28

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
psychologists, are highly qualified physicians and
psychologists who are also experts in Social Security
disability evaluations. Therefore, administrative law
judges must consider findings of State agency medical or
psychological consultants, or other program physicians or
psychologists, as opinion evidence except for the
ultimate determination about whether you are disabled.
Dr. V. McElwain’s opinion is inconsistent with the report of
Dr. Morgan that Jeffries could both sit and stand for six hours
during

an

eight-hour

workday,

that

she

had

no

manipulative

limitations and that her allegations were not fully credible. (R.
at 552-59.) Dr. Franyutti’s report agreed with these assessments.
(Dkt. No. 15 at 53.) On May 13, 2009, Dr. Sabio completed a
consultative examination of Jeffries and determined that her fine
manipulation movements were normal, and that her motor strength was
5/5 in her upper and lower extremities, bilaterally. (R. at 548.)
Further inconsistencies can be found in the September 17, 2010 note
of Dr. Luke McElwain (“Dr. L. McElwain”), a practitioner at Webster
County Memorial Hospital Clinic, who noted that Jeffries complained
of

her

right

examination,

hand

and

however,

he

both

legs

noted

“going

that

numb.”

Jeffries

Following

could

move

an
her

extremities “well,” had good strength and normal sensation, and
that her Tinel’s and Phalen’s signs were negative. His diagnosis

29

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
was limited to intermittent paresthesias in her hands. (R. at 65758.)
Thus, because there is other persuasive evidence in the record
that contradicts Dr. V. McElwain’s functional assessment, the
magistrate judge’s conclusion that the record contains substantial
evidence to support the ALJ’s assignment of little weight to Dr. V.
McElwain’s opinion, even if she is considered a treating physician,
is not erroneous.
2.

Dr. Joseph

Jeffries next contends that Dr. Joseph’s mental residual
functional capacity assessment “should have been entitled to the
greatest weight.” (Dkt. No. 16 at 4.) The ALJ assigned “little
weight” to Dr. Joseph’s opinion, noting:
Her assessment that the claimant has marked
difficulty
maintaining
concentration,
persistence, or pace is not consistent with
the evidence as a whole.
Considering the
claimant’s reported activities of daily living
and the results of the prior consultative
examination, the undersigned finds it highly
unlikely
that
the
deficiencies
in
concentration observed by Dr. Joseph are
representative of her true baseline status.
Rather, Dr. Joseph’s examination is a mere
snapshot of the claimant’s overall picture as
she only visited with the claimant on one
occasion.
Further, Dr. Joseph’s opinion is
somewhat contradictory as she assessed the
30

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
claimant a GAF of 55, which is indicative of
only moderate symptoms. This is inconsistent
with her opinion that the claimant had marked
difficulty with concentration, persistence, or
pace. Such an assessment is also inconsistent
with the claimant’s reported activities of
daily living, which include reading, driving,
and cooking, all of which require some degree
of concentration.
In order to give the
claimant the utmost benefit of the doubt, the
undersigned has incorporated those limitations
assessed by Dr. Joseph (which are consistent
with the evidence as a whole) in the above
residual functional capacity.
(R. at 38.)
In her psychological assessment, Dr. Joseph indicated that
Jeffries appeared to have lingering symptoms of PTSD, including
some

concentration

difficulties,

had

moderately

impaired

concentration based on her “performance on serial 7's,” (R. at
705), and had a GAF of 55, indicating moderate symptoms.2
707.)

(R. at

The magistrate judge determined that Dr. Joseph’s mental

residual functional capacity assessment was inconsistent because of
discrepancies

in

notations

indicating

2

a

marked

limitation

in

A GAF of 51-60 indicates Moderate symptoms (e.g., flat affect
and circumstantial speech, occasional panic attacks) OR moderate
difficulty in social, occupational, or school functioning (e.g.,
few friends, conflict with peers and coworkers). Diagnostic and
Statistical Manual of Mental Disorders (“DSM-IV”), 32 (4th ed.
1994) (emphasis in original).
31

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
ability to sustain attention and concentration for extended periods
(R.

at

710),

and

another

where

she

indicated

Jeffries’

concentration was moderately impaired (R. at 712.)
The magistrate judge further determined that Dr. Joseph’s
opinion also was inconsistent with those of the state agency
reviewing psychologists. According to the medical records, on
May

5,

2009,

Larry

J.

Legg,

M.A.,

noted

that

Jeffries’

concentration was only mildly deficient. (R. at 528.) Eight days
later, Philip E. Comer, Ph.D., indicated that Jeffries had mild
difficulties in maintaining concentration, persistence, or pace.
(R. at 542.) Jim Capage, Ph.D. reviewed Dr. Comer’s Psychiatric
Review Technique and affirmed it on August 27, 2009. (R. at 579.)
The magistrate judge’s determination that Dr. Joseph’s opinion
was internally inconsistent, as well as inconsistent with other
persuasive evidence in the record, and that the record contained
substantial evidence to support the ALJ’s assignment of little
weight to Dr. Joseph’s opinion is not erroneous.
F.

Appeals Council Failure to Remand Regarding Evidence of Carpal
Tunnel Syndrome and Diagnosis of Fibromyalgia
Jeffries contends that the Appeals Council erred by failing to

remand her case to the ALJ for consideration of additional evidence

32

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
regarding CTS and fibromyalgia. (Dkt. No. 16 at 5.) In Wilkins v.
Sec’y, Dep’t of Health & Human Servs., 953 F.2d 93, 95-96 (4th Cir.
1991), the Fourth Circuit determined that the Appeals Council must
consider additional evidence that was not submitted to the ALJ if
the evidence is (1) new, (2) material, and (3) relates to the
period on or before the date of the ALJ’s decision. “New evidence
is evidence which is not duplicative or cumulative. Evidence is
‘material’ if there is a reasonable possibility that it would have
changed the outcome.” Id. at 96. Evidence relates to the period on
or before the date of the ALJ’s decision if it provides evidence of
a plaintiff’s impairments at the time of the decision. See Johnson
v. Barnhart, 434 F.3d 650, 655-56 (4th Cir. 2005).
1.

Carpal Tunnel Syndrome

After a thorough review of the evidence Jeffries submitted to
the

Appeals

Council

regarding

her

CTS,

the

magistrate

judge

determined that it was not material, and that the Appeals Council
had not erred in failing to remand the matter to the Commissioner.
The

evidence

submitted

to

the

Appeals

Council

included

the

following:
1.

A February 24, 2011 report from P.A. Harper indicating a
nerve conduction study showed that Jeffries was positive

33

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
for bilateral carpal tunnel syndrome, right worse than
left. (R. at 776-77);
2.

A May 18, 2011 report indicting that Dr. Topping
performed a right carpal tunnel release. (R. at 778);

3.

A June 3, 2011 report from
P.A. Harper indicating
Jeffries reported “doing very well” and that her
“numbness and tingling have completely resolved.” He
noted that she had “full flexion extension of her
fingers” and could “oppose her thumb to the base of her
fourth metacarpal.” (R. at 779.); and

4.

A July 14, 2011 report from P.A. Little indicating that
“for the most part[,] her [Jeffries] hand [was] doing
much better,” that her “symptoms have resolved as far as
forearm pain and numbness.” (R. at 780.)

Because

these

reports

established

that

there

had

been

significant improvement in Jeffries’ functioning, the magistrate
judge determined that this evidence would not have changed the
ALJ’s finding that Jeffries’ CTS was not a disabling condition
(dkt. no. 15 at 56), and therefore was not material. The magistrate
judge’s conclusion that the Appeals Council did not err in denying
remand of the case for consideration of this evidence is not
erroneous.

See Wilkins, 953 F.2d at 96.

2.

Fibromyalgia

The

magistrate

judge

noted

that

the

evidence

submitted regarding her claim of fibromyalgia included:

34

Jeffries

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
1.

A July 18, 2011, report from Dr. Kafka, a rheumatologist,
following a consultative examination for polymyalgias and
polyerthralgias (R. 832) that “reveal[ed] 17 or 18
positive fibromyalgia tender points” and indicated that
Jeffries met the diagnostic criteria for fibromyalgia.
(R. at 834-35); and

2.

A July 29, 2011, report from P.A. Deaton indicating that
Jeffries reported that “Dr. Topping . . . stated she may
have some possible fibromyalgia from the EMG test and .
. . she [would] be treated for fibromyalgia by her
rheumatologist for right now.” (R. at 792).

Inasmuch

as

Jeffries

did

not

allege

disability

due

to

fibromyalgia when she filed her March 12, 2009 claims for SSI and
DBI, the ALJ never considered whether fibromyalgia should be listed
as a severe impairment. Nor does the evidence submitted to the
Appeals Council establish that she was disabled due to fibromyalgia
during the period of time prior to the March 31, 2011 decision of
the ALJ.

See Mitchell, 699 F.2d at 188.

The magistrate judge

therefore correctly determined that this evidence was not related
to the time period in question, and therefore was not material to
the issue before the ALJ. (Dkt. No. 15 at 57.)
The magistrate further concluded that remand for consideration
of the evidence regarding a diagnosis of fibromyalgia would permit
Jeffries to prosecute a different and later disability claim based
on the original disability claim filing date, even though there is

35

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
substantial evidence that she was not disabled under her original
claim. Furthermore, inasmuch as this so-called “new evidence”
relates to a time period after the ALJ’s decision, it is simply
irrelevant to the disability claim under review. See 42 U.S.C. §§
405(g) & 423(b); Willis v. Sec’y of Health & Human Servs., 727 F.2d
551, 554 (6th Cir. 1984.)
Accordingly,

the

magistrate

judge’s

conclusion

that

the

Appeals Council did not err in denying remand for consideration of
this evidence is not erroneous.
VII. CONCLUSION
After careful examination of Jeffries’ objections, the Court
concludes
thoroughly

that

she

has

considered

not

by

raised

Magistrate

any

issues

Judge

that

Kaull

in

were
his

not
R&R.

Moreover, upon an independent de novo consideration of all matters
now before it, the Court is of the opinion that the R&R accurately
reflects

the

law

applicable

to

the

relevant

facts

and

circumstances, and therefore ADOPTS the R&R and DIRECTS that this
civil action be disposed of in accordance with the recommendation
of the magistrate judge.
1.

GRANTS

the

(Docket No.

Accordingly, the Court

defendant's
13);
36

motion

for

Summary

Judgment

JEFFRIES V. COMMISSIONER OF SOCIAL SECURITY

1:12CV162

ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
2.

DENIES

the

plaintiff's

motion

for

Summary

Judgment

(Docket No. 11); and
3.

DISMISSES this civil action WITH PREJUDICE and ORDERS
that it stricken from the docket of this Court.

Pursuant to Fed.R.Civ.P. 58, the Court directs the Clerk of
Court to enter a separate judgment order and to transmit copies of
this Order to counsel of record.
If a petition for fees pursuant to the Equal Access to Justice
Act (EAJA) is contemplated, the plaintiff is warned that, as
announced in Shalala v. Schaefer, 113 S.Ct. 2625 (1993), the time
for such a petition expires in ninety days.
DATED: March 26, 2014
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

37