Phillips v. Commissioner Of Social Security Administration

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATION: ORDERED that the Report and Recommendation 18 is, hereby ORDERED ADOPTED for the reasons more fully stated in the magistrate judges report. The Plaintiffs Objections 19 are OVERRULED. The Defendants Mot ion for Summary Judgment 16 is GRANTED and the Plaintiffs Motion for Summary Judgment 10 is DENIED. This Court hereby DENIES and DISMISSES the plaintiffs Complaint 1 and ORDERS that this matter be STRICKEN from the active docket of this Court. This Court further DIRECTS the Clerk to enter judgment in favor of the defendant. Signed by District Judge John Preston Bailey on 3/19/15. (jss)

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

JEFFREY A. PHILLIPS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

CIVIL ACTION NO. 2:14-CV-67
(BAILEY)

Defendant.

ORDER ADOPTING REPORT & RECOMMENDATION

On this day, the above styled matter came before this Court for consideration of the
Report and Recommendation of United States Magistrate Judge John S. Kaull [Doc. 18].
Pursuant to this Court’s Local Rules, this action was referred to Magistrate Judge Kaull for
submission of a proposed report and a recommendation (“R & R”). Magistrate Judge Kaull
filed his R&R on February 6, 2015, wherein he recommends that the Defendant’s Motion
for Summary Judgment be granted, and Plaintiff’s Motion for Summary Judgment be
denied. On February 19, 2015, the plaintiff timely filed Objections to the R & R. [Doc. 19].
For the reasons set forth below, this Court adopts Magistrate Judge Kaull’s R&R.
I.

BACKGROUND
On August 28, 2009, Jeffrey A. Phillips filed an application for disability insurance

benefits (“DIB”) alleging disability since June 11, 2009. [Doc. 18 at 1]. On June 13, 2011,
Administrative Law Judge (“ALJ”) Mark Swayze entered a decision finding Mr. Phillips was
not disabled. [Doc. 8-3 at record pg. 110–12]. Thereafter, on July 6, 2011, plaintiff filed
another application for DIB alleging disability since June 11, 2009 due to rheumatoid

arthritis, diabetes, and depression. [Doc. 8-5 at 168–69, 199]. Mr. Phillips’ applications
were denied at the initial and reconsideration levels [Doc. 8-4 at 116–20, 126–28]. On April
2, 2013, Mr. Phillips had a hearing in front of ALJ Regina Carpenter. [Doc. 8-2 at 35–37].
At the hearing, Mr. Phillips, represented by counsel, Brian Bailey, testified as well as
Vocational Expert (“VE”) Larry Bell. [Doc. 8-2 at 35]. On April 15, 2013, the ALJ entered
a decision finding Mr. Phillips not disabled. Id. at 14–29. In accordance with the five-step
evaluation process described in 20 C.F.R. § 404.1520, the ALJ made the following findings:
1.

The claimant meets the insured status requirements of the Social Security
Act at least through December 31, 2014. (Exhibit B3D).

2.

The claimant has not engaged in substantial gainful activity since June 14,
2011, the date after the prior hearing decision. (Exhibit B3D). (20 C.F.R. §
404.1571 et seq.).

3.

The claimant has the following severe impairments: diabetes mellitus;
diabetic neuropathy; obesity; hypertension; and bipolar disorder/major
depressive disorder. (20 C.F.R. § 404.1520(c)).

4.

The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d),
404.1525 and 404.1526).

5.

After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform sedentary work as
defined in 20 C.F.R. § 404.1567(a) with the following limitations: no
crouching, crawling, or climbing of ladders/ropes/scaffolds and no more than
occasional performance of balancing, stooping, or climbing of stairs or
ramps; no concentrated exposure to heat, cold, and vibration; must avoid
even moderate exposure to hazards such as dangerous moving machinery
or unprotected heights; entails only simple, routine, and repetitive instructions
and tasks; work must be performed in a low stress setting, defined as
requiring no assembly line, no fast paced production requirements, no more
than occasional changes in work routine or work setting, and little
independent decision making or goal setting; no contact with the public and
no more than occasional interaction with co-workers and supervisors; and
once work is assigned, work should be able to be performed primarily without
working in coordination with others.
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6.

The claimant is unable to perform any past relevant work (20 C.F.R.
404.1565).

7.

The claimant was born on April 23, 1964 and was 45 years old, which is
defined as a younger individual age 45-49, on the alleged disability onset
date (20 C.F.R. § 404.1563).

8.

The claimant has at least a high school education and is able to
communicate in English (20 C.F.R. § 404.1564).

9.

Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled,” whether or not the claimant has
transferable job skills (See SSR 82-41 and 20 C.F.R Part 404, Subpart P,
Appendix 2).

10.

Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 C.F.R. §§ 404.1569(a)
and 404.1569(a)).

11.

The claimant has not been under a disability, as defined in the Social
Security Act, from June 14, 2011, through the date of this decision (20 C.F.R.
§ 404.1520(g)).

[Doc. 8-2 at 16–29].
On July 7, 2014, the Appeals Council denied Mr. Phillips’ request for review, which
made the ALJ’s decision the final decision of the Commissioner. Id. at 15. On August 25,
2014, the plaintiff filed the instant action pursuant to 42 U.S.C. § 405(g) for judicial review
of the final decision of the Commissioner of the Social Security Administration for denying
plaintiff’s claim for DIB under Title II of the Social Security Act. The R&R provides a
detailed discussion of the plaintiff’s medical history, which this Court will not rehash, and
adopts the facts as stated therein. [Doc. 18].
II.

STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de novo review of
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any portion of the magistrate judge’s recommendation to which objection is timely made.
As to those portions of a recommendation to which no objection is made, a magistrate
judge’s findings and recommendation will be upheld unless they are “clearly erroneous.”
See Webb v. Califano, 458 F.Supp. 825 (E.D. Cal. 1979). Because the plaintiff filed
objections, this Court will undertake a de novo review as to those portions of the report and
recommendation to which objections were made.
An ALJ’s findings will be upheld if supported by substantial evidence. See Milburn
Colliery Co. v. Hicks, 138 F.3d 524, 528 (4th Cir. 1998). Substantial evidence is that
which a “‘reasonable mind might accept as adequate to support a conclusion.’” Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (quoting Richardson v. Perales, 402 U.S.
389, 401 (1971)). Further, the “possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency’s findings from being supported by
substantial evidence.” Sec’y of Labor v. Mutual Mining, Inc., 80 F.3d 110, 113 (4th Cir.
1996) (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966)).
III.

DISCUSSION
In response to the magistrate judge’s R&R, the plaintiff asserts four objections to the

magistrate judge’s report.

First, the plaintiff claims that Dr. Salman’s opinion was

consistent with his treatment notes, specifically concerning Mr. Phillips’ limitation of missing
four or more days of work per month. Second, the plaintiff asserts that the ALJ’s credibility
analysis is still unclear based on the ALJ crediting Mr. Phillips’ statements relative to
treatment notes and then discrediting statements at the hearing. Third, the plaintiff argues
that the ALJ did not indicate how Mr. Phillips’ activities of daily living equated to the ability

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to sustain substantial gainful activities for eight hours per day, fives days per week. Last,
the plaintiff asserts that the ALJ based her medical analysis to “define the terms
‘stabilization’ and ‘improvement’ to mean that Mr. Phillips was capable of sustaining
substantial gainful activity.” [Doc. 19 at 1]. This Court will address the objections in the
order that they were raised.
A.

The ALJ’s assessment of the plaintiff’s medical records is supported
by the substantial evidence.

The plaintiff claims that the ALJ failed to address why Dr. Salman’s treatment notes
were inconsistent with Dr. Salman’s opinion that Mr. Phillips would miss more than four
days of work per month. [Doc. 19 at 1]. The plaintiff also claims that the ALJ ignored 20
C.F.R. § 404.1527. This Court disagrees. The plaintiff dismisses the examples the
magistrate judge cites in the R&R [Doc. 18 at 36], and chose to focus on one note in a
medical record. Regardless of that fact, the ALJ and the magistrate judge address the
plaintiff’s concern regarding Dr. Salman’s inconsistences in his treatment notes. As the
ALJ notes, on December 13, 2011, Dr. Salman opined that the plaintiff was unable to work
gainful employment due to his disability. See [Doc. 8-9 at pg. 518 (Ex. B16F at pg. 2)]. On
March 15, 2013, Dr. Salman opined that the plaintiff would likely be absent from work more
than four times a month. See [Doc. 8-11 at pg. 604]. The ALJ concludes that Dr. Salman’s
opinion is inconsistent with the longitudinal view of the record.1 [Doc. 8-2 at pg. 26]. The
ALJ also notes other inconsistences in Dr. Salman’s opinion. For example, on March 15,
2013, Dr. Salman filled out the Medical Source Statement (Mental) and found that the
1

The ALJ states that “[u]ltimately, the Administrative Law Judge has accorded the
findings and conclusions of Dr. Salman limited weight due to such being inconsistent with
the full longitudinal record in a number of ways.” [Doc. 8-2 at 26].
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plaintiff was mostly “moderately severe” in the categories for understanding and memory,
sustained concentration and persistence, social interaction, and adaptation. [Doc. 8-11 at
pgs. 601– 604]. However, over the previous twelve months, Dr. Salman’s Psych Progress
Notes fail to mention the severity of the plaintiff’s condition. See [Doc. 8-11 at 598]. Thus,
the ALJ’s opinion that Dr. Salman’s testimony is inconsistent is supported by the substantial
evidence. The ALJ did not commit error by giving limited weight to Dr. Salman’s findings.
Accordingly, the plaintiff’s objection is OVERRULED.
B.

The ALJ correctly assessed Mr. Phillips’ credibility.

Next, the plaintiff asserts that the ALJ “seems to be selectively attributing credit to
only the portions of Mr. Phillips’ statements . . . that show that Mr. Phillips is not disabled.”
[Doc. 19 at 3].
As set forth by the Magistrate Judge, an ALJ's evaluation of a claimant's credibility
must be given great deference. Specifically, it has been held that an ALJ's credibility
determination should only be reversed “if the claimant can show it was ‘patently wrong.’”
O'Connor v. Comm'r of Soc. Sec., 794 F.Supp.2d 667, 672 (N.D. W. Va. 2011) (citing
Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000)). This is in part because the ALJ 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.”
Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (citing Tyler v. Weinberger, 409
F.Supp. 776 (E.D. Va. 1976)).
Here, the plaintiff’s conclusory statement that the ALJ improperly assessed the
plaintiff’s credibility is unpersuasive. The plaintiff has failed to point to anywhere in the

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record where the ALJ summarily dismissed the plaintiff’s claims at the hearing. After a
careful review of the record the ALJ did not improperly weigh Mr. Phillips’ credibility. This
Court agrees with the magistrate judge that the ALJ properly followed the credibility
assessment as outlined in Craig v. Charter, 76 F.3d 585 (4th Cir. 1996). The ALJ opines
that:
At the April 2013 disability hearing, the claimant continued to
assert compensable disability status as a result of diabetes,
peripheral neuropathy, and depression/anxiety. However, the
credibility of the claimant’s subjective allegations are [sic]
undermined for a number of reasons.
First, the treatment history and medical evidence of record is
not indicative of a disabling condition that would render the
claimant unable to engage in sustained employment for a
continuous period of 12 months.
...
Turning specifically to the claimant’s treatment history with
regards to his physical condition, the Administrative Law Judge
has found the claimant to have greater physical limitations than
found in the prior hearing decision, but not to the extent to
render the claimant unable to engage in all forms of substantial
gainful activity for a continuous period of 12 months. Overall,
in light of the electrodiagnostic studies revealing the claimant
to have significant diabetic neuropathy, the undersigned has
restricted the claimant to greater physical limitations than
ascribed for in the prior hearing decision.
[Doc. 8-2 at pg. 19–20].
The ALJ gave several more reasons why the plaintiff was not credible, which the
magistrate judge thoroughly addressed. See [Doc. 18 at 25]. The plaintiff’s proof by
assertion argument is crippled by not asserting any evidentiary basis for the objection and
by not addressing any specific conclusions the magistrate judge raised. Accordingly, the
plaintiff’s objection is OVERRULED.
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C.

The ALJ provided evidentiary support that the plaintiff’s daily activities
undermines his credibility that he is totally disabled.

The plaintiff argues that the ALJ “did not explain how the ability to attend church
service relates to Mr. Phillips’ limitations in daily activities; and the ALJ did not explain how
Mr. Phillips’ ability to attend a weekly church service was indicative of the ability to sustain
work for 8 hours a day for 5 days a week.” [Doc. 19 at 5].
The ALJ makes the conclusion that the plaintiff has the residual functional capacity
to perform sedentary work as defined in 20 C.F.R. § 404.1567(a). [Doc. 8-2 at 18]. The
ALJ makes a detailed finding based on the medical records and in accordance with the
requirements of 20 C.F.R. § 404.1529 and SSR 96 4P. See [Doc. 8-2 at 19]. After the ALJ
provided seven pages to support his opinion, the ALJ opines the following:
Finally, along with the aforementioned, the full longitudinal
record of evidence readily demonstrates that the claimant’s
allegations of the disabling nature of his alleged impairments
are significantly undermined by his daily activities. More
specifically, in July 26, 2011 Adult Function Report, the
claimant reported that during his typical day he was able to
provide care for one of his cats, watch television, and read the
newspaper. Further, he indicated that he had no problem with
his personal care, prepared his own meals, and mowed his
lawn on a tractor. The claimant also reported that he was able
to drive an automobile and shop in stores. He further indicated
that he was able to attend church on a regular basis.
[Doc. 8-2 at 27].
The plaintiff asserts that the ALJ failed to explain how the ability to attend church
service relates to Mr. Phillips’ limitations in daily activities. The plaintiff supports his
argument by citing to 20 C.F.R. § 404.1572, which provides the definition of substantial
gainful activity. [Doc. 19 at 4]. The definition states that “[g]enerally, we do not consider
activities like taking care of yourself, household tasks, hobbies, therapy, school attendance,
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club activities, or social programs to be substantial gainful activity.” 20 C.F.R. § 404.1572.
The plaintiff conflates the requirement that the plaintiff show an inability to engage
in any substantial gainful activity with the ALJ’s opinion that the record provides evidence
that the plaintiff is not totally disabled. Whether the plaintiff is engaged in substantial
gainful activity is evaluated at step one of the Social Security Administration’s five-step
evaluation process. The ALJ determined that the plaintiff was not engaged in substantial
gainful activity since June 14, 2011. [Doc. 8-2 at 16]. In determining whether the plaintiff
has the residual functional capacity to perform sedentary work, the ALJ made the
determination that the plaintiff is not totally disabled, in part, based on the plaintiff’s Adult
Functional Reports. [Doc. 8-6 at 206]. The ALJ found, in light of the Adult Functional
Reports2 and the plaintiff’s testimony at the April 2013 disability hearing, that the residual
functional capacity is justified. [Doc. 8-2 at 27]. The ALJ further determined that the
plaintiff’s treatment history and the Adult Functional Reports demonstrate that the plaintiff
lacks a totally disability. Accordingly, the ALJ provided substantial evidence that the
plaintiff was not totally disabled and the plaintiff’s objection is hereby OVERRULED.
D. The ALJ accurately used the terms “stabilization” and “improvement.”
The plaintiff argues that the ALJ “used her own medical analysis to define the terms
‘stabilization’ and ‘improvement’ to mean that Mr. Phillips was capable of sustaining
substantial gainful activity.” [Doc. 19 at pg. 6]. In essence, the plaintiff rehashes his
argument that the ALJ dismissed Dr. Salman’s opinion that—despite the record showing
that Mr. Phillips had periods of improvement and stabilization— Mr. Phillips would still miss

2

The Adult Functional Report indicates that the plaintiff was able to attend church.
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more than four days of work per month. [Doc. 19 at 6].
This Court finds no merit to the plaintiff’s objection. As stated above, the ALJ
properly gave Dr. Salman’s opinion limited weight in reference to the March 15, 2013,
Medical Source Statement that the plaintiff would miss more than four days from work a
month. [Doc. 8-11 at 604]. The ALJ states that:
the claimant’s treatment history with Dr. Salman is
replete with periods of mental health stabilization and
improvement. Such periods are inconsistent with a
complete inability to engage in work activity for a
continuous period of 12 month and the ‘Moderately
Severe’ limitations ascribed by this doctor. Further as
noted above, while finding the claimant to have
moderately severe limitations as to facets of
understanding/memory, Dr. Salman observed the
claimant on numerous occasions observed the claimant
to have a normal memory. Finally, such findings are
inconsistent with the claimant’s report social functioning
and activities of daily living as articulated upon in Adult
Function Reports.
[Doc. 8-2 at 26].
For this reason and the reasons stated in the R&R, this Court finds that the ALJ
considered the substantial evidence in the record by befittingly denoting the terms
“stabilization” and “improvement.”3 Id. Accordingly, the plaintiff’s objection is OVERRULED.

IV.

CONCLUSION

3

The Court notes that the plaintiff’s argument fails to cite to a specific part in the
record where the ALJ uses the terms “stabilization” and “improvement.” In the R&R, the
magistrate judge addresses the plaintiff’s contention that the ALJ arbitrarily used the terms
“stable” and “improvement.” [Doc. 18 at 38]. The plaintiff did not specifically object to the
magistrate judge’s analysis. As such, to the extent that the plaintiff was referencing the
magistrate judge’s conclusion, the objection is OVERRULED.
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Upon careful review of the above, it is the opinion of this Court that the Report and
Recommendation [Doc. 18] should be, and is, hereby ORDERED ADOPTED for the
reasons more fully stated in the magistrate judge’s report. Further, the Plaintiff’s Objections
[Doc. 19] are OVERRULED. Thus, the Defendant’s Motion for Summary Judgment [Doc.
16] is GRANTED and the Plaintiff’s Motion for Summary Judgment [Doc. 10] is DENIED.
Accordingly, this Court hereby DENIES and DISMISSES the plaintiff’s Complaint
[Doc. 1] and ORDERS that this matter be STRICKEN from the active docket of this Court.
This Court further DIRECTS the Clerk to enter judgment in favor of the defendant.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record herein.
DATED: March 19, 2015.

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