Newcomb v. Commissioner of Social Security

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATIONS: This Court is of the opinion that Magistrate Judge Seiberts Report and Recommendations 16 should be and is ADOPTED. Further, the Plaintiffs Objections 17 are OVERRULED. The Defendants Motion for Summa ry Judgment 13 is GRANTED and the Plaintiffs Motion for Summary Judgment 11 is DENIED. Accordingly, this Court hereby DENIES and DISMISSES the plaintiffs Complaint 1 and ORDERS the this matter be STRICKEN from the active docket of this Court. The Clerk is directed to enter a separate judgment in favor of the defendant. Signed by District Judge John Preston Bailey on 4/29/15. (jss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS
JAMES HENRY NEWCOMB, JR.,
Plaintiff,
v.

Civil Action No. 2:14-CV-76
The Honorable John Preston Bailey

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATIONS
On this day, the above-styled matter came before this Court for consideration of the
Report and Recommendation of United States Magistrate Judge James E. Seibert [Doc.
16]. Pursuant to this Court’s Local Rules, this action was referred to Magistrate Judge
Seibert for submission of a proposed report and recommendation (“R & R”). Magistrate
Judge Seibert entered his R & R on April 2, 2015, wherein he recommends that the
Defendant’s Motion for Summary Judgment be granted, and Plaintiff’s Motion for Summary
Judgment be denied. The plaintiff timely filed Objections to the R & R [Doc. 17] to which
the defendant filed a response [Doc. 18]. For the reasons set forth below, this Court adopts
Magistrate Judge Seibert’s R & R.
I. BACKGROUND
Plaintiff, James Newcomb, Jr., filed an application for Title II Disability Insurance
Benefits on November 29, 2011. R. 11 [Doc. 7-2]. His claim was first denied on March 5,
2012 and again upon reconsideration on April 24, 2012. Id. Mr. Newcomb then requested

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and received a hearing before United States Administrative Law Judge Maria Nunez,
[hereinafter “ALJ”]. On January 30, 2014 the ALJ issued a written decision finding that Mr.
Newcomb was not disabled from September 20, 2009, through the date last insured on
March 31, 2011.
The plaintiff then sought review in this Court. [Doc. 1]. United States Magistrate
Judge James E. Seibert submitted his R & R. [Doc. 16]. The R & R provides a detailed
discussion regarding the plaintiff’s medical history.

Therefore, the undersigned will

dispense with the same. Rather, the undersigned will reference the pertinent records when
applicable.
II. STANDARD OF REVIEW
When reviewing a Magistrate Judge’s proposed findings of fact and
recommendations, this Court must make a “de novo determination of those portions of the
report . . . to which objection is made. A judge of the court may accept, reject or modify,
in whole or in part, the findings or recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1) (West 2014).
Although this Court will review the Magistrate Judge’s R & R under a de novo
standard of review, this Court’s review of the underlying ALJ’s decision is limited. See
Smith v. Schweiker, 795 F.2d 343, 345 (4th Cir. 1986). Pursuant to 42 U.S.C. § 405(g)
(West 2014), “[t]he findings of the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive.” The standard for the substantial
evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.

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389, 401 (1971) (citation omitted). When analyzing whether the ALJ’s decision was
supported by substantial evidence, this Court must determine whether the ALJ
“consider[ed] all relevant evidence.” Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438,
339 (4th Cir. 1997). With these standards in mind, this Court will turn to the objection
raised by the plaintiff.
III. DISCUSSION
Mr. Newcomb argues that the ALJ’s Residual Functional Capacity (“RFC”) finding
was not supported by substantial evidence because the ALJ failed to perform a function-byfunction analysis. Specifically, Mr. Newcomb argues that the ALJ failed to address his
sit/stand restrictions. This, in turn, resulted in the ALJ posing hypothetical questions to the
Vocational Expert (“VE”) that were inadequate and incomplete. [Doc. 17, at 2].
In the present case, at step two, the ALJ determined that Mr. Newcomb suffered
from the following severe impairments: “vertigo and fatigue as residuals of a brain
aneurysm, obesity, degenerative joint disease/arthritis, personality disorder . . . and mood
disorder . . ..” R. 13 [Doc. 7-2, at 14]. At step three, the ALJ found that none of these
severe impairments matched a listed impairment. Therefore, the ALJ moved to step four
which required the ALJ to assess Mr. Newcomb’s RFC.
The RFC is the “most [a claimant] can still do despite [the claimant’s] limitations.” 20
C.F.R. § 404.1545. When assessing an individual’s RFC, the ALJ is directed to use all
relevant medical and other evidence. See id. This includes evidence from medical
examinations, opinions from medical sources, and descriptions and statements from the
applicant regarding the applicant’s abilities. See id.
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When considering the claimant’s

statements regarding his pain or other symptoms, the ALJ is directed to make a credibility
determination. See id. § 404.1529 (discussing the factors the ALJ is to consider when
assessing pain and other symptoms).
Mr. Newcomb objects to the ALJ’s finding regarding Mr. Newcomb’s ability to stand
and/or walk. Therefore, this Court will limit its discussion of the record to this issue. In the
present case, the ALJ discussed the plaintiff’s musculoskeletal pain and functional
limitations in detail. Most of the evidence regarding Mr. Newcomb’s limited ability to stand
and walk were his own statements. R.16–18 [Doc. 7-2, at 16–18]. The ALJ compared Mr.
Newcomb’s hearing testimony with his own previously written statements, which is a
permissible credibility determination. See SSR 96-7p (July 2, 1996), 1996 WL 374186.
At the hearing, Mr. Newcomb testified that his back pain intensified the longer he
stood. The ALJ asked Mr. Newcomb: “How long at that time, and I’m talking about
between 2009, and March, 2011, were you able to stand before you needed to sit?” Mr.
Newcomb answered “[p]robably about half an hour, or less, between 20 minutes and half
a half an hour, I’d have to sit down.” R. 16, 42 [Doc. 7-2, at 43].
In addition to the hearing testimony, the ALJ considered statements that Mr.
Newcomb made closer to the date he was last insured. For instance, on February 4, 2012,
Mr. Newcomb completed a Function Report wherein he described his daily activities, which
include cooking, cleaning, and mowing the lawn. R. 18 [Doc. 7-2, at 19]. Mr. Newcomb
also indicated that he could walk for ten to twelve blocks on level ground. Id. Based on this
report and statements that Mr. Newcomb made to medical providers, the ALJ found that
he could perform light work with additional restrictions, including that he would need to
alternate between sitting and standing every half an hour.
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Based on the record, the ALJ determined Mr. Newcomb had the residual functional
capacity to perform a limited range of light work.1 Specifically, the ALJ found that:
the claimant had the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except he must be able to alternate between
sitting and standing in place every one-half hours, he can occasionally climb
ramps/stairs, balance, stoop, kneel, crouch and crawl, he can never climb
ropes, ladders, or scaffolds or be exposed to hazards including machinery
and heights, he must avoid concentrated exposure to fumes, odors, dust, and
gasses, and other pulmonary irritants, he is capable of performing unskilled
(SVP2) work with no interaction with the public and no more occasional
interaction with co-workers and supervisors.
Mr. Newcomb argues that this RFC was inadequate because “the ALJ did not
specify how long Newcomb could sit and stand, total, in an eight-hour day, and in that the
ALJ did not address how much walking Newcomb could do either at one time or in total.”
Plf’s Obj. to R & R 2 [Doc. 17]. Mr. Newcomb asserts that the ALJ’s failure to make these
specific findings warrants remand because the ALJ did not perform a function-by-function
analysis.
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
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Light work is defined as:

[l]ifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds. Even though the weight lifted may be very
little, a job is in this category when it requires a good deal of walking or
standing, or when it involves sitting most of the time with some pushing and
pulling of arm or leg controls. SSR 83-10.
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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
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, Mr. Newcomb does not assert that the ALJ failed to consider
conflicting medical evidence. Further, this Court is “not left to guess about how the ALJ
arrived at his conclusions” because the ALJ’s findings reflect Mr. Newcomb’s hearing
testimony and previous statements about his own abilities. Id.
After the ALJ determines the RFC, the ALJ must ascertain whether, given the
claimant’s limitations, the claimant can “perform other work that ‘exists in significant
numbers in the national economy.’” Id. at 637 (quoting 20 C.F.R. § 416.920). As explained
in SSR 83-12, when the claimant must alternate between sitting and standing, the ALJ
should consult with a VE. See Martin Barnhart, 240 Fed. Appx. 941, 946 (3d Cir. 2007)
(“SSR 83-12 does not automatically dictate a finding of disability where an individual is
limited by a sit/stand option. Rather, SSR 83-12 indicates that a VE should be consulted.
. . ..”). Here, the ALJ included the sitting restriction in her hypothetical to the VE. The ALJ
asked the VE, in part:

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For the second hypothetical question I’d like you to further consider the
following. The individual is occasionally able to lift and or carry including
upward pulling of 20 pounds, and frequently lift and or carry including upward
pulling 10 pounds. The individual is able to sit for six of eight hours and
stand and or walk for six of eight hours but would need to be able to alternate
between sitting and standing in place every half hour . . . The individual would
be capable of performing unskilled work or work with an SVP of no more than
two, in a non-production oriented setting . . ..
R. 59 [Doc. 7-2, at 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 clerk, and garment sorter. R. 60 [Doc. 7-2, at 61].
The ALJ’s determination that Mr. Newcomb “would need to be able to alternate
between sitting and standing in place every half hour” is supported by the VE’s testimony.
Further, any ambiguity in the ALJ’s question to the VE was resolved with the VE’s
testimony. When questioned by plaintiff’s counsel, the VE testified that the positions of
office helper and mail clerk “would be about 50/50" between sedentary and light work. This
testimony is consistent with the ALJ’s finding that Mr. Newcomb would need to alternate
between sitting and standing every thirty minutes.
The ALJ’s decision shows that she considered the extent of the plaintiff’s ability to
stand and walk during a workday before she concluded that the plaintiff could perform a
limited range of light work. Accordingly, this Court finds that the ALJ’s decision was
supported by substantial evidence.
IV. CONCLUSION
For the foregoing reasons, this Court is of the opinion that Magistrate Judge
Seibert’s Report and Recommendations [Doc. 16] should be and is ADOPTED. Further,
the Plaintiff’s Objections [Doc. 17] are OVERRULED. Therefore, the Defendant’s Motion
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for Summary Judgment [Doc. 13] is GRANTED and the Plaintiff’s Motion for Summary
Judgment [Doc. 11] is DENIED.
Accordingly, this Court hereby DENIES and DISMISSES the plaintiff’s Complaint
[Doc. 1] and ORDERS the this matter be STRICKEN from the active docket of this Court.
The Clerk is directed to enter a separate 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: April 29, 2015.

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