Floyd v. Commissioner of Social Security

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATION: It is ORDERED that Magistrate Seibert's 17 Report and Recommendation is hereby ADOPTED; Plaintiff's 12 Motion for Judgment on the Pleadings is DENIED; Defendant's 14 Motion for Summary Judgment is GRANTED; Plaintiff's 18 Objections are OVERRULED. This Court hereby DENIES and DISMISSES WITH PREJUDICE Plaintiff's 1 Complaint 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 3/29/16. (cnd) Modified relationship on 3/29/2016 (cnd).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ElKINS
NATHANIEL FLOYD,
Plaintiff,
v.
CIVIL ACTION NO. 2:15-CV-25
(BAILEY)
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
ORDER ADOPTING REPORT & RECOMMENDATION

I. INTRODUCTION
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.
17]. 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 filed his R&R on January 20, 2016, wherein he recommends that
defendant’s Motion for Summary Judgment [Doc. 14] be granted and plaintiff’s Motion for
Judgment on the Pleadings [Doc. 12] be denied. On February 2, 2016, plaintiff timely filed
objections to the R&R [Doc. 18]. Having been fully briefed, this matter is now ripe for
consideration. For the reasons set forth below, this Court adopts Magistrate Judge
Seibert’s R&R.

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II. BACKGROUND
On April 2, 2015, 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) and 42 U.S.C. § 1383(c)(3). By standing order of the Court, this case was referred
to United States Magistrate Judge James E. Seibert for proposed findings of fact and a
recommended disposition.

Thereafter, plaintiff filed a Motion for Judgment on the

Pleadings [Doc. 12] on July 17, 2015, and defendant filed a Motion for Summary Judgment
[Doc. 14], on August 12, 2015. The magistrate judge filed his Report and Recommendation
on January 20, 2016, concluding that the ALJ made no legal errors and substantial
evidence supported the ALJ’s decision [Doc. 17]. Accordingly, the R&R recommends that
the ALJ’s decision be affirmed, the plaintiff’s Motion for Judgment on the Pleadings be
denied, and the defendant’s Motion for Summary Judgment be granted [Id.]. Thereafter,
plaintiff timely filed his Objections [Doc. 18] on February 2, 2016.
III. APPLICABLE LAW
A. Standard of Review:
Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed. R. Civ. P. 72(b)(2), this Court must
conduct a de novo review of 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 Oripano v. Johnson, 687 F.2d 44 (4th Cir. 1982); citing
Webb v. Califano, 458 F.Supp. 825 (E.D. Cal. 1979). General objections to the magistrate
judge’s report and recommendation, reiterating arguments already presented, lack the

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specificity required by Fed. R. Civ. P. 72, and have the same effect as a failure to object.
Veney v. Astrue, 539 F.Supp.2d 841, 845 (W.D. Va. 2008); citing United States v.
Midgette, 478 F.3d 616, 621-622 (4th Cir. 2007). Because plaintiff filed timely objections,
this Court will undertake a de novo review as to those portions of the report and
recommendation to which objections were made. The remainder will be reviewed for clear
error.
B. 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). An administrative law judge’s
(“ALJ”) findings will be upheld if supported by substantial evidence. See Milburn Colliery
Co. v. Hicks, 138 F.3d 524, 528 (4th Cir. 1998). The phrase “supported by substantial
evidence” means “such relevant evidence as a reasonable person might accept as
adequate to support a conclusion.” See Richardson v. Perales, 402 U.S. 389, 401 (1971)
(citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). 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
(1996)). The issue is not whether a claimant is disabled, but whether the ALJ’s finding of

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disabled or not disabled is supported by substantial evidence and was reached based upon
a correct application of the relevant law. Meyer v. Astrue, 662 F.3d 700, 704 (4th Cir.
2011) (citing Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996)). 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).
C.

Five-Step Evaluation Process:

To be disabled under the Social Security Act, a claimant must meet the following
criteria:
[The] individual . . . [must have a] physical or mental impairment or
impairments . . . of such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which exists in the
national economy, regardless of whether such work exists in the immediate
area in which he lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work. . . . '[W]ork which exists in
the national economy' means work which exists in significant numbers either
in the region where such individual lives or in several regions of the country.
42 U.S.C. § 423(d)(2)(A) (2004). The Social Security Administration uses the following fivestep sequential evaluation process to determine whether a claimant is disabled:
(i) At the first step, we consider your work activity, if any. If you are doing
substantial gainful activity, we will find that you are not disabled.
(ii) At the second step, we consider the medical severity of your
impairment(s). If you do not have a severe medically determinable physical
or mental impairment that meets the duration requirement . . . or a
combination of impairments that is severe and meets the duration
requirement, we will find that you are not disabled.
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(iii) At the third step, we also consider the medical severity of your
impairment(s). If you have an impairment(s) that meets or equals one of our
listings . . . and meets the duration requirement, we will find that you are
disabled.
[Before the fourth step, the [RFC] of the claimant is evaluated “based on all
the relevant medical and other evidence in your case record . . . ."]
(iv) At the fourth step, we consider our assessment of your [RFC] and your
past relevant work. If you can still do your past relevant work, we will find that
you are not disabled.
(v) At the fifth and last step, we consider our assessment of your [RFC] and
your age, education, and work experience to see if you can make an
adjustment to other work. If you can make an adjustment to other work, we
will find that you are not disabled. If you cannot make an adjustment to other
work, we will find that you are disabled.
20 C.F.R. § 404.1520 (2015); 20 C.F.R. § 416.920 (2012). In steps one through four, the
burden is on the claimant to prove that he or she is disabled and that, as a result of the
disability, he or she is unable to engage in any gainful employment. Richardson v.
Califano, 574 F.2d 802, 804 (4th Cir. 1978). Once this is proven, the burden of proof shifts
to the Government at step five to demonstrate that jobs exist in the national economy that
the claimant is capable of performing. Hicks v. Gardner, 393 F.2d 299, 301 (4th Cir.
1968). If the claimant is determined to be disabled or not disabled at any of the five steps,
the process will not proceed to the next step. 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920.
IV. DISCUSSION
In response to the magistrate judge’s R&R, plaintiff asserts a single objection.
Namely, plaintiff contends that the magistrate judge erred in finding that the ALJ properly
evaluated Floyd’s credibility [Doc. 18 at 2].

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A. Standard of Review for Addressing Objections to the ALJ’s Credibility
Determination:
This Court begins by noting the standard of review for addressing plaintiff’s
objections to the ALJ’s credibility assessment. “Because 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.” Shively v. Heckler, 739 F.2d
987, 989 (4th Cir. 1984) (citing Tyler v. Weinberger, 409 F. Supp. 776 (E.D. Va. 1976)).
As Judge Frederick P. Stamp has held, “[a]n ALJ’s credibility determinations are ‘virtually
unreviewable’ by this Court.” Ryan v. Astrue, 2011 WL 541125 at *3 (N.D. W.Va.
February 8, 2011) (citing Darvishian v. Green, 404 Fed.Appx. 822, 831 (4th Cir. 2010)).
This Court will reverse an ALJ’s credibility determination only if the claimant can show it
was ‘patently wrong.’” Emigh v. Commissioner of Social Sec., 2015 WL 545833 at *22
(N.D. W.Va. February 10, 2015) (citing Powers v. Apfel, 207 F.3d 431, 435 (7th Cir.
2000)).
An ALJ must consider all of the evidence in the record when making a credibility
determination. Where an ALJ decides not to credit a claimant's testimony about pain, the
ALJ must articulate specific and adequate reasons for doing so, or the record must be
obvious as to the credibility finding. Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir.
1985). Although credibility determinations are generally left to an ALJ’s discretion, such
determinations shall not be sustained if based on improper criteria.

Breeden v.

Weinberger, 493 F.2d 1002, 1010 (4th Cir. 1974) (“We recognize that the administrative
law judge has the unique advantage of having heard the testimony firsthand, and ordinarily
we may not disturb credibility findings that are based on a witness's demeanor. But
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administrative findings based on oral testimony are not sacrosanct, and if it appears that
credibility determinations are based on improper or irrational criteria they cannot be
sustained.”). Moreover, SSR 96-7P states,
[t]he reasons for the credibility finding must be grounded in the evidence and
articulated in the determination or decision. It is not sufficient to make a
conclusory statement that ‘the individual’s allegations have been considered’
or that ‘the allegations are (or are not) credible.’ It is also not enough for the
adjudicator simply to recite the factors that are described in the regulations
for evaluating symptoms. The determination or decision must contain specific
reasons for the finding on credibility, supported by the evidence in the case
record, and must be sufficiently specific to make clear to the individual and
to any subsequent reviewers the weight the adjudicator gave to the
individual’s statements and the reasons for that weight. This documentation
is necessary in order to give the individual a full and fair review of his or her
claim, and in order to ensure a well-reasoned determination or decision.
SSR 96-7P (S.S.A.), 1996 WL 374186 at *4.
B. Plaintiff Has Not Demonstrated that the ALJ Was Patently Wrong in
Making Her Credibility Determination, and Her Decision is Supported by
Substantial Evidence:
Before discussing the arguments raised in the objection, this Court must first
address the initial premise of plaintiff’s objection. Plaintiff asserts that, “[b]ecause the
Magistrate Judge agreed with the ALJ’s finding, [he] did not fully consider the validity of
Floyd’s argument . . ..” This is an untenable proposition. First, Magistrate Judge Seibert
is required by the standing order to conduct a full and thorough review of the record before
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issuing his R&R. To contend that Magistrate Judge Seibert did not comport with his duty
merely because he disagreed with plaintiff’s argument is, at best, baseless. Second, a
plain reading of the R&R indicates that Magistrate Judge Seibert did conduct his review
with the requisite thoroughness.

The R&R clearly outlines both the plaintiff’s and

defendant’s contentions, and balances each in turn. As such, the entire foundation upon
which plaintiff’s argument is based is fundamentally flawed.
Turning to the substantive portions of plaintiff’s objection, he first contends that the
ALJ, “did not address many of the factors that she was required to address pursuant to
SSR 96-7p,” including: (1) the location, duration, frequency, and intensity of Mr. Floyd’s
pain; (2) the factors that precipitated and aggravated his symptoms; (3) the type, dosage,
effectiveness, and side effects of any medication he used or had used to alleviate pain or
other symptoms; (4) treatment, other than medication he received or had received for relief
of pain or other symptoms; or (5) any measures other than treatment he used or had used
to relieve pain or other symptoms [Doc. 18 at 2]. In support of that argument, plaintiff notes
only that, “Floyd testified extensively about side effects of medications” [Id.]. Additionally,
the ALJ specifically noted that, “[After his surgery, Floyd] had pain on the left side, at his
surgical area . . ..” [Doc. 9-2 at 16]. The ALJ also noted that, “[the medications that Floyd
was taking] caused him to be dizzy, have fatigue with some nausea and reflux.” [Id.]. The
ALJ also discusses both plaintiff’s treatment and measures outside of treatment extensively
in the decision [Id. at 16-19]. Accordingly, the first portion of plaintiff’s objection does not
indicate that the ALJ was “patently wrong” in denying his claim for benefits. Emigh, 2015
WL 545833 at *22.

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Next, plaintiff contends that “the ALJ mis-characterized some and completely omitted
other statements made by Floyd regarding his daily activities” [Doc. 18 at 2]. In support of
that argument, plaintiff contends that while the ALJ noted in her opinion that “Floyd ‘lived
alone, dusted, made simple meals, and loaded the dishwasher,’” she purportedly “ignored
the fact that he also testified that his girlfriend, who lived 15 miles away from him, came
over daily to help him with tasks like cooking and cleaning.” [Id.]. This too is simply untrue,
as the ALJ explicitly noted that, “[j]ust after his surgery, his girlfriend would come by every
day and do cooking and cleaning for the claimant.” [Doc. 9-2 at 16]. The ALJ “carefully
considered” this and other evidence in rendering her decision [Id. at 17]. Accordingly, the
second portion of plaintiff’s objection is also without merit.
As such, this Court finds nothing in plaintiff’s objections which could possibly be
used to disturb the ALJ’s finding. This Court also finds that the ALJ’s decision in this matter
was supported by substantial evidence. Accordingly, plaintiff’s objections are overruled.
V. CONCLUSION
Upon careful review of the above, it is the opinion of this Court that the Report and
Recommendation [Doc. 17] should be, and is, hereby ORDERED ADOPTED for the
reasons more fully stated in the magistrate judge’s report. Further, plaintiff’s Objections
[Doc. 18] are OVERRULED. Thus, plaintiff’s Motion for Judgment on the Pleadings [Doc.
12] is DENIED, and defendant’s Motion for Summary Judgment [Doc. 14] is GRANTED.
Accordingly, this Court hereby DENIES and DISMISSES WITH PREJUDICE
plaintiff’s Complaint [Doc. 1] and ORDERS that this matter be STRICKEN from the active

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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 29, 2016

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