Hutton v. Commissioner Of Social Security Administration

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATION: It is ORDERED that Magistrate Judge Trumble's 19 Report and Recommendation is ADOPTED; Plaintiff's 20 Objections are OVERRULED; Plaintiff's 10 Motion for Summary Judgment is DENIED; and Defendant's 13 Motion for Summary Judgment is GRANTED. The Court hereby DISMISSES WITH PREJUDICE Plaintiff's 1 Complaint and ORDERS it STRICKEN from the active docket of this Court. The Clerk shall enter a separate judgment in favor of the Defendant. Signed by District Judge John Preston Bailey on 6/16/15. (cnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS

JOSEPH HUTTON,
Plaintiff,
v.

Civil Action No. 2:14-CV-63
(BAILEY)

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION
I.

Introduction
On this day, the above-styled matter came before the Court for consideration of the

Report and Recommendation (“R&R”) of United States Magistrate Judge Robert W.
Trumble [Doc. 19], the plaintiff’s Objections thereto [Doc. 20], and the Commissioner’s
Response to Plaintiff’s Objections [Doc. 21]. Pursuant to 28 U.S.C. § 636(b)(1)(C), this
Court is required to make a de novo review of those portions of the magistrate judge’s
findings to which objection is made. However, failure to file objections permits the district
court to review the R&R under the standards that the district court believes are appropriate,
and under these circumstances, the parties’ right to de novo review is waived. See Webb
v. Califano, 468 F.Supp. 825 (E.D. Cal. 1979). Accordingly, this Court will conduct a de
novo review only as to those portions of the R&R to which the plaintiff objected. The
remaining portions of the R&R will be reviewed for clear error. As a result, it is the opinion

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of this Court that the R&R should be ORDERED ADOPTED.
II.

Standards
A.

Judicial Review of an ALJ Decision

“Judicial review of a final decision regarding disability benefits is limited to
determining whether the findings . . . are supported by substantial evidence and whether
the correct law was applied. See 42 U.S.C. § 405(g). ‘The findings . . . as to any fact, if
supported by substantial evidence, shall be conclusive.’ Richard v. Perales, 402 U.S. 389,
390, 91 S. Ct. 1420, 1422 (1971); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).
The phrase ‘supported by substantial evidence’ means ‘such relevant evidence as a
reasonable person might accept as adequate to support a conclusion.’ See Perales, 402
U.S. at 401, 91 S. Ct. at 1427 (citing Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229, 59 S. Ct. 206, 216 (1938)). Substantial evidence . . . consists of more than a mere
scintilla of evidence but may be somewhat less than a preponderance . . .. Thus, it is not
within the province of a reviewing court to determine the weight of the evidence, nor is it
the court’s function to substitute its judgment . . . if the decision is supported by substantial
evidence. See Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966); Snyder v.
Ribicoff, 307 F.2d 518, 529 (4th Cir. 1962). Ultimately, it is the duty of the administrative
law judge reviewing a case, and not the responsibility of the courts, to make findings of fact
and to resolve conflicts in the evidence. King v. Califano, 599 F.2d 597, 599 (4th Cir.
1979). ‘This Court does not find facts or try the case de novo when reviewing disability
determinations.’ Seacrist v. Weinberger, 538 F.2d 1054, 1056-57 (4th Cir. 1976).” Hays
v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).
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B.

Five-Step Evaluation Process

To determine whether a claimant is disabled, the ALJ considers the following fivestep evaluation process:
Step One:

Determine whether the claimant is engaging in substantial
gainful activity;

Step Two:

Determine whether the claimant has a severe impairment;

Step Three: Determine whether the claimant has a listed impairment (20
C.F.R. Part 404, Subpart P, Appendix 1) and conduct a
Residual Functional Capacity (“RFC”) assessment;
Step Four:

Consider the RFC assessment to determine whether the
claimant can perform past relevant work; and

Step Five:

Consider the RFC assessment, age, education, and work
experience to determine whether the claimant can perform any
other work.

See 20 C.F.R. § 404.1520.
III.

Background
On August 14th, 2014, plaintiff filed his Complaint [Doc. 1] seeking judicial review

of an unfavorable decision by the Commissioner of Social Security pursuant to 42 U.S.C.
§ 405(g).

By standing order of the Court, this case was referred to United States

Magistrate Judge Robert W. Trumble for proposed findings of fact and a recommended
disposition. Thereafter, the parties filed their respective motions for summary judgment.
[Docs. 10 & 13]. The magistrate judge filed his Report and Recommendation on March 9,
2015, concluding that the ALJ made no legal errors and substantial evidence supported the
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ALJ’s decision. Accordingly, the R&R recommends that the ALJ’s decision be affirmed, the
plaintiff’s Motion for Summary Judgment be denied, and the defendant’s Motion for
Summary Judgment be granted. Thereafter, plaintiff timely filed his Objections.
IV.

Plaintiff’s Objections
On March 26, 2015, plaintiff filed Objections to the Magistrate Judge’s Report and

Recommendation (“R&R”). [Doc. 20]. Therein, plaintiff lodges two objections. This Court
will address the same in turn.
First, the plaintiff argues that the ALJ erroneously assessed the plaintiff’s RFC in that
she failed to include any limitation upon concentration. The ALJ determined that the
plaintiff had moderate limitations in concentration, persistence, or pace. Thus, the plaintiff
asserts the magistrate judge’s finding that the limitation to “unskilled” work properly
accounted for the plaintiff’s mental impairment was in error. In support, the plaintiff cites
to Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015), to support his argument that a limitation
to unskilled work does not adequately account for limitation in concentration, persistence,
and pace. As noted by the defendant in her response [Doc. 21], the plaintiff’s reliance on
Mascio is misplaced.
The ALJ’s RFC finding was as follows:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) except that he is unable to climb ladders, ropes, and
scaffolds. He is able to occasionally climb ramps and stairs, balance, stoop,
crouch, and crawl. He must avoid concentrated exposure to extreme cold,
extreme heat, wetness, humidity, vibration, and fumes, odors, dust, gases,
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and poor ventilation. He must avoid all exposure to work hazards, such as
unprotected heights and dangerous machinery. He is limited to unskilled
work with no contact with the public and no more than occasional interaction
with coworkers and supervisors.
[Doc. 7-2] (emphasis added).
The ALJ continued to describe each underlying medically determinable physical and
mental impairment and then undertook individual evaluations of the intensity, persistence,
and limiting effects to determine the extent to which each limited the claimant’s functioning.
Relevant to the instant inquiry regarding the claimant’s moderate limitations in
concentration, persistence, or pace, the ALJ stated:
Despite his impairments, Mr. Hutton reported in his written statements and
testimony that he is able to live with others, perform house repairs, wash
laundry, wash dishes, mow with assistance, go outside daily, pay bills, count
change, handle a savings account, use a checkbook/money orders, and
watch television.
Accordingly, the ALJ concluded that:
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be expected
to cause some of the alleged symptoms; however, the claimant’s statements
concerning the intensity, persistence and limiting effects of these symptoms
are not entirely credible for the reasons explained in this decision.
Some of the many reasons in the decision as referenced by the ALJ include the
treating sources’ findings that “the claimant exhibited good attention, intact memory, logical
thought flow, good judgment, normal comprehension of commands” and “clear thought
content, average cognitive capability, good insight, good immediate and recent memory .
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. ..” (Exhs. 2F, 7F, 14F, and 20F) [Doc. 7-2].
In Mascio, the Fourth Circuit was concerned that the ALJ did not explain why
Mascio’s moderate limitation in concentration, persistence, or pace at step three did not
translate into a limitation in Mascio’s residual functional capacity. The Fourth Circuit noted,
however, that the ALJ may find that the concentration, persistence, or pace limitation would
not affect Mascio’s ability to work, in which case it would have been appropriate to exclude
it from the hypothetical tendered to the vocational expert. In Mascio, however, the ALJ
gave no explanation whatsoever. 780 F.3d at 638.
In this case, as shown above, the ALJ gave abundant explanation for her RFC
findings regarding claimant’s concentration limitations. It is clear the ALJ then used the
qualifier limiting work to “unskilled work” to the VE in her hypothetical to reflect these
findings.
As proscribed by SSR 96-8p, “[t]he RFC assessment must first identify the
individual's functional limitations or restrictions and assess his or her work-related abilities
on a function-by-function basis . . . only after that may RFC be expressed in terms of the
exertional levels of work, sedentary, light, medium, heavy, and very heavy.” The Fourth
Circuit recently held that “[r]emand may be appropriate . . . where an ALJ fails to assess
a claimant's capacity to perform relevant functions, despite contradictory evidence in the
record, or where other inadequacies in the ALJ's analysis frustrate meaningful review.”
Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015)(quoting Cichocki v. Astrue, 729 F.3d
172, 177 (2d Cir. 2013)(per curiam)).
In Mascio, the Fourth Circuit remanded an ALJ’s decision for failing to perform a
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function-by-function analysis. Id. at 636. The Mascio Court held remand was necessary,
in part, because the ALJ failed to indicate the weight given to two residual functional
capacity assessments which contained relevant conflicting evidence regarding the
claimant’s weight lifting abilities. Id. at 637.
Unlike Mascio, the ALJ considered the conflicting evidence at great length and
assigned it the appropriate weight she found it deserved. Further, this Court is “not left to
guess about how the ALJ arrived at her conclusions.” Id. This is evident from not only the
ALJ’s opinion, but also from reading the hearing transcript.
The ALJ asked the VE, in part:
Q: …And ask you to assume an individual who is younger aged, with a high
school education, the past work you’ve described and the residual functional
capacity to: occasionally lift and/or carry 20 pounds; frequently lift and/or
carry ten pounds; stand and/or walk about six hours in eight; sit about six
hours in eight; is unlimited in the ability to push and pull and that would
consistent with light work; can never climb ladders, ropes and scaffolds; but
can occasionally climb ramps and stairs; occasionally balance, stoop, kneel,
crouch and crawl; has no manipulative or visual limitation; no communicative
limitations; but should avoid concentrated exposure to extreme cold, extreme
heat, wetness, humidity, vibration, fumes, odors, dust, gasses and poor
ventilation; and avoid all exposure to work hazards, such as unprotected
heights and dangerous machinery. Are there jobs which exist in significant
numbers in the national economy that such an individual could perform? If
so, please describe those jobs and the number of jobs in the region of the
claimant’s residence and in the national economy.
A: Yes, ma’am. Light work available to such a hypothetical individual would
include work such as a marker, specific to retail industry. The DOT –
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Q: I’m sorry. Just – let me stop you a minute. This is a West Virginia case.
A: Yes, ma’am.

Yes, ma’am.

The DOT is 209.587-034.

There are

approximately 400 – or in excess of 400,000 in the national economy and
approximately 6,000 in the region and the region being the state of West
Virginia. Also work as a non-postal mail clerk. The DOT is 209.687-026.
There are approximately 45,000 in the national economy and approximately
450 regionally. And finally, work as a router. The DOT is 222.587-038.
There are approximately 76,000 in the national economy and approximately
1,000 regionally. Those are representative examples of light work, all with
SVP:

2 consistent with the descriptions provided in the Dictionary of

Occupational Titles.
Q: If I ask you further to assume this individual is limited to unskilled work,
cannot work, cannot work with the public or have more than occasional
interaction with coworkers and supervisors, could such an individual perform
any of the jobs you’ve described?
A: I would think that the mail clerk and the router would be appropriate. The marker would
be inappropriate.

However, that could be replaced by work as a laundry sorter,

361.687-014, 50,000 in the national economy and approximately 600 regionally. And that
is also consistent with the DOT.
(R. 59).
The ALJ then further inquired as to whether there were jobs the plaintiff could
perform if he “… experienced pain or mental impairment of the severity he could not
concentrate or attend to basic job tasks…?” (R. 59). The VE responded “No, ma’am.” (R.
60).
The VE responded that the individual would not be able to do any of the plaintiff’s
past work, but the individual would be able to perform the jobs of an office helper, mail

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clerk, and garment sorter. (R. 60) [Doc. 7-2, at 61].
The ALJ’s decision shows that she considered the extent of the plaintiff’s ability to
concentrate before she concluded that the plaintiff could perform a limited range of
unskilled work. Accordingly, this Court finds that the ALJ’s decision was supported by
substantial evidence.
As outlined in the C.F.R., the RFC is assessed by the ALJ only after he reviews all
relevant evidence of a claimant’s impairments and related symptoms. See 20 C.F.R. §
404.1527(b). Further, the C.F.R. states, “in deciding whether you are disabled, we will
always consider the medical opinions in your case record together with the rest of the
relevant evidence we receive.” 20 C.F.R. § 404.1527(b). In his assessment of plaintiff’s
RFC, the ALJ reviewed all of plaintiff’s evidence, including the impairments, pain
symptoms, physical and mental limitations, and pertinent medical evidence in the record.
Subsequent to the ALJ’s review of the record, in his R&R, the Magistrate Judge
exhaustively examined the ALJ’s findings and determined that the ALJ correctly evaluated
the plaintiff’s RFC. The claimant’s Objection is OVERRULED.
The claimant appears to make a very brief second objection: “In addition, the
Mascio Court found that the Administrative Law Judge had erred in determining the
Claimant’s residual functional capacity before assessing her credibility, citing Bjornson v.
Astrue, 671 F.3d 640, 644-645 (7th Cir. 2012). Id. The Administrative Law Judge here
made the same error.” [Doc. 20 at 4]. The claimant provides no support for this assertion
other than this conclusory, self-serving statement.
The error in Mascio stemmed from the ALJ’s use of the following language in his
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opinion:
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be expected
to cause the alleged symptoms; however, the claimant’s statements
concerning the intensity, persistence and limiting effects of these symptoms
are not credible to the extent they are inconsistent with the above residual
functional capacity assessment.
780 F.3d at 639.
In agreeing with the Seventh Circuit’s assessment, Fourth Circuit held that this
“boilerplate ‘gets things backwards’ by implying ‘that ability to work is determined first and
is then used to determine the claimant’s credibility.’ Bjornson, 671 F.3d at 645.” Id.
Rather, the Mascio Court determined that the ALJ should have compared Mascio’s alleged
functional limitations from pain to the other evidence in the record, not to Mascio’s residual
functional capacity. Id.
In this case, the ALJ properly considered all symptoms and the extent to which the
symptoms could reasonably be accepted as consistent with the objective medical evidence
and other evidence, based upon the requirements of 404.1529 and SSRs 96-4p and 96-7p.
In so doing, the ALJ properly followed the two-step process in which it must first be
determined whether there was an underlying medically determinable physical or mental
impairment that could reasonably be expected to produce the claimant’s symptoms. And
second, the ALJ evaluated the intensity, persistence, and limiting effects of the claimant’s
symptoms to determine the extent to which they limit the claimant’s functioning. Only to
the extent that the limitations were not substantiated by objective medical evidence did the

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ALJ make findings as to the credibility of statements based on a consideration of the entire
case record.
In Mascio, the Court determined that nowhere did “the ALJ explain how he decided
which of Mascio’s statements to believe and which to discredit, other than the vague (and
circular) boilerplate statement that he did not believe any claims of limitations beyond what
he found when considering Mascio’s residual functional capacity.” 780 F.3d at 640. It was
this “lack of explanation,” the Court held, which “requires remand.” Id. Here, the ALJ
clearly stated that “the claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely credible for the reasons explained in this
decision.” [Doc. 7-2 at 34]. Nowhere does this Court find that the ALJ “[got] things
backwards by implying that the ability to work [was] determined first and [was] then used
to determine the claimant’s credibility.” Bjornson, 671 F.3d at 645. The claimant’s
Objection is OVERRULED.
V.

Conclusion
Upon careful review of the R&R, it is the opinion of this Court that the Magistrate

Judge’s Report and Recommendation [Doc. 19] should be, and hereby is, ORDERED
ADOPTED. Further, the plaintiff’s Objections [Doc. 20] are OVERRULED. Therefore, this
Court ORDERS that the plaintiff’s Motion for Summary Judgment [Doc. 10] is hereby
DENIED and the defendant’s Motion for Summary Judgment [Doc. 13] is hereby
GRANTED. Accordingly, the Court hereby DISMISSES WITH PREJUDICE the plaintiff’s
Complaint [Doc. 1] and ORDERS it STRICKEN from the active docket of this Court. The
Clerk shall enter separate judgment in favor of the defendant.
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It is so ORDERED
The Clerk is directed to transmit copies of this Order to counsel of record herein.
DATED: June 16, 2015.

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