Turner v. Commissioner of Social Security
MEMORANDUM OPINION AND ORDER ADOPTING IN PART REPORT AND RECOMMENDATION. Signed by Chief Judge Gina M. Groh on 6/28/17. (njz) copy mailed to pro se pla via cert. return rec't mail (Additional attachment(s) added on 6/28/2017: # 1 Certified Mail Return Receipt) (njz).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CATHERINE ELAINE TURNER,
CIVIL ACTION NO.: 3:16-CV-17
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
ADOPTING IN PART REPORT AND RECOMMENDATION
On this day, the above-styled matter came before the Court for consideration of
the Report and Recommendation (“R&R”) [ECF No. 37] of United States Magistrate
Judge James E. Seibert. Magistrate Judge Seibert issued his R&R on March 28, 2017,
recommending that this Court deny the Plaintiff’s Motion for Summary Judgment [ECF
No. 32] and grant the Commissioner’s Motion for Summary Judgment [ECF No. 35]. For
the following reasons, Magistrate Judge Seibert’s R&R is hereby ADOPTED IN PART.
On January 3, 2014, the Plaintiff filed an application for a period of disability and
disability insurance benefits alleging disability beginning on August 9, 2013.
Plaintiff’s claim was initially denied on March 31, 2014, and again on May 9, 2014. At the
Plaintiff’s request, a hearing was held before the Administrative Law Judge (“ALJ”) on
August 25, 2015. Following the hearing, the ALJ found that the Plaintiff suffers from the
following severe impairments: (1) cervical spine degenerative disc disease, (2) lumbar
spine degenerative disc disease with radiculopathy and (3) obesity. The ALJ determined
that, although the Plaintiff suffers from various severe impairments and mild mental
limitations, none—either on their own or in combination with one another—meet or equal
the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
Upon calculating the Plaintiff’s residual functional capacity (“RFC”), the ALJ
determined that the Plaintiff is able to perform past relevant work as a procurement
clerk—a position that does not require the performance of work-related activities that are
precluded by the Plaintiff’s RFC. In addition, the ALJ found additional jobs, which exist in
significant numbers in the national economy, that the Plaintiff is able to perform.
Accordingly, the ALJ rendered an unfavorable decision, finding the Plaintiff not disabled
under the Social Security Act. On December 16, 2015, the Appeals Council denied the
Plaintiff’s request for review.
On February 12, 2016, the Plaintiff filed her complaint with this Court seeking
review of the Commissioner’s final decision. On February 6, 2017, the Plaintiff filed her
motion for summary judgment. Thereafter, on February 24, 2017, the Commissioner filed
her motion for summary judgment. On April 12, 2017, upon reviewing the pleadings and
relevant materials in this case, United States Magistrate Judge James E. Seibert entered
his R&R, recommending that the Plaintiff’s motion for summary judgment be denied and
the Commissioner’s motion for summary judgment be granted.
The Plaintiff filed
objections to the R&R on April 14, 2017. This case is now ripe for consideration.
II. Standards of Review
Review of the R&R
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de novo review of
those portions of the magistrate judge’s findings to which the Plaintiff objects. However,
failure to file timely objections constitutes a waiver of de novo review.
§ 636(b)(1)(C); Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States
v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). In this case, pursuant to 28 U.S.C.
§ 636(b)(1)(C) and Magistrate Judge Seibert’s R&R, objections were due within fourteen
days after being served with a copy of the same. The Plaintiff timely filed objections on
April 14, 2017.1 Accordingly, the Court will review de novo the portions of the R&R to
which the Plaintiff objects and the remainder of the R&R for clear error.
Review of the ALJ Decision
The Social Security Act limits this Court’s review of a final decision of the
Commissioner of the Social Security Administration to (1) whether substantial evidence
supports the Commissioner’s decision, Richardson v. Perales, 402 U.S. 389, 390-402
(1971), and (2) whether the Commissioner applied the correct legal standards, Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). “Substantial evidence” means “more than
a mere scintilla” and “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 229
(1938). A reviewing court must not reweigh the evidence or substitute its judgment for
that of the Commissioner, so long as the Commissioner’s decision is supported by
substantial evidence. Hays, 907 F.2d at 1456. It is the duty of the ALJ—not the reviewing
On April 12, 2017, the Plaintiff filed a motion for extension of time to file objections. ECF No. 39. However,
two days thereafter—prior to the Court’s ruling on the motion—the Plaintiff timely filed her objections.
court—to make findings of fact and 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.”).
To determine whether a claimant is disabled, the ALJ conducts a five-step
evaluation process. 20 C.F.R. § 404.1520(a)(4). If the ALJ finds that the claimant is
disabled or not disabled at a certain step, a determination is made and the ALJ does not
proceed to the next step. Id. The steps are as follows:
Step One: Determine whether the claimant is engaging in substantial gainful
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.
Davidson v. Astrue, Civil Action No. 2:11-CV-55, 2012 WL 667296, at *3 (N.D. W. Va.
Feb. 28, 2012) (citing 20 C.F.R. § 404.1520(a)(4)).
Here, under the five-step process, and after consideration of the entire record, the
ALJ found that the Plaintiff had not engaged in substantial gainful activity since August 9,
2013. The ALJ determined that the Plaintiff suffers from various severe impairments and
mild mental limitations, but none that meet or equal the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. After conducting an RFC
assessment, the ALJ concluded that the Plaintiff is able to perform past relevant work
and, additionally, is able to perform other jobs that exist in significant numbers in the
national economy. As a result, the ALJ determined that the Plaintiff is not disabled under
the Social Security Act.
Upon careful consideration of the record, the parties’ motions and the R&R, the
Court finds that the magistrate judge committed no clear error with regard to the portions
of the R&R to which the Plaintiff does not object. Upon de novo review of the portions of
the record to which objections are made, the Court finds that the ALJ’s decision applies
the correct legal standards and is supported by substantial evidence. The Court discerns
seven separate objections by the Plaintiff and will review each in turn.
Severity of Impairments
The Plaintiff objects to the finding by the ALJ, and ratification by the magistrate
judge, that not all of her impairments are severe. In her decision, the ALJ found that the
Plaintiff suffers from three severe physical impairments: cervical spine degenerative disc
disease, lumbar spine degenerative disc disease with radiculopathy and obesity. ECF
No. 23-2 at 20.
The ALJ found that the Plaintiff’s remaining physical and mental
impairments cause no more than minimal or mild limitations on work-related activities and
thus characterized those impairments as non-severe. As indicated by the magistrate
judge, there is substantial evidence within the record to support this conclusion. In regard
to the Plaintiff’s mental impairments of depression and anxiety, the ALJ found no more
than mild limitation in all four functional areas. ECF No. 23-2 at 20-22. In so finding, the
ALJ indicated that the Plaintiff feeds her dogs and provides them with medication,
watches television, bathes herself, uses an iPad, checks Facebook, cooks, vacuums,
prepares cereal and soup, uses the microwave, folds clothes, goes outside daily and
reads. ECF No. 23-2 at 21. The mental status examination by Dr. Harry Hood and
determinations by state agency consultants, Drs. Pedro Lo and Dominic Gaziano, support
the ALJ’s finding that the Plaintiff’s mental disabilities result in no more than a mild
restriction on work-related activities. See ECF Nos. 23-3 at 2-24; 23-7 at 18-22. The
Plaintiff disagrees with the weight the ALJ afforded to specific portions of the record.
However, it is not within this Court’s province to reweigh the evidence and because
substantial evidence supports the ALJ’s conclusion, the Plaintiff’s objection is
See Thompson v. Astrue, 442 F. App’x 804, 805 (4th Cir. 2011)
(unpublished per curiam).
Limitation Due to Headaches
The Plaintiff argues that her headaches are more debilitating than the ALJ
determined. Nevertheless, as observed by the magistrate judge, substantial evidence is
within the record to support the ALJ’s finding. Specifically, the ALJ noted, based upon
the administrative record, that the Plaintiff’s headaches improve depending on her
medication regimen. ECF No. 23-2 at 24; see also ECF Nos. 23-8 at 12, 18, 20; 23-9 at
9. Moreover, the ALJ did not find the Plaintiff’s subjective reports of the severity of her
headaches to be entirely credible. ECF No. 23-2 at 26. Accordingly, because substantial
evidence supports the ALJ’s finding regarding the severity of the Plaintiff’s headaches,
the decision will not be overturned and the objection is OVERRULED.
The Plaintiff takes issue with the ALJ’s credibility determination.
credibility determinations of hearing courts are afforded considerable deference. See
F.T.C. v. Ross, 743 F.3d 886, 894 (4th Cir. 2014); Salyers v. Chater, 107 F.3d 867, at *1
(4th Cir. 1997) (unpublished table decision) (citing Barker v. Shalala, 40 F.3d 789, 795
(6th Cir. 1994)). Accordingly, an ALJ’s 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) (internal quotation and citation omitted). Here, the ALJ explained that she did
not find the Plaintiff’s allegations entirely credible because they were inconsistent with the
objective findings in the medical evidence. ECF No. 23-2 at 26. A de novo review of the
record supports this conclusion. Accordingly, because the Plaintiff has not demonstrated
that the ALJ’s credibility determination is patently wrong, the Plaintiff’s objection on the
issue is OVERRULED and the ALJ’s credibility determination stands.
Opinions of Drs. Lo and Gaziano
The Plaintiff takes issue with the weight attributed to the opinions of state agency
consultants Drs. Lo and Gaziano because they are not her treating physicians. Generally,
the ALJ must afford greater weight to the opinion of a treating physician than that of a
non-treating physician. Hurley v. Colvin, Civil Action No. 2:14-12131, 2015 WL 4253873,
at *11-12 (S.D. W. Va. July 13, 2015). Indeed, “a non-examining physician’s opinion
cannot by itself . . . serve as substantial evidence supporting a denial of disability benefits
when it is contradicted by all of the other evidence in the record.” Id. at 12 (internal
quotation and citation omitted). However, if a medical opinion “is not supported by clinical
evidence or if it is inconsistent with other substantial evidence, it should be accorded
significantly less weight.” Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996).
Here, the ALJ considered all of the medical evidence, including findings of treating
and non-treating physicians. See ECF No. 23-2 at 23-27. Notably, the opinions offered
by the state agency consultants do not contradict the findings of the Plaintiff’s treating
physicians. Moreover, the summation of the Plaintiff’s abilities as provided by the state
agency consultants corresponds to her own admissions throughout the record: she is able
to care for pets, perform household tasks, fold clothes, vacuum, walk to the mailbox, go
to the store, check Facebook, use an iPad, read, use the microwave and bathe. See ECF
Nos. 23-2 at 45-46; 23-3 at 2-24; 23-6 at 11-18. In regard to the Plaintiff’s mental
impairments, the findings by the state agency consultants correspond with the prognosis
by Dr. Hood, an examining psychologist. The ALJ largely relied upon Dr. Hood’s findings,
which included the Plaintiff’s activities of getting up at 8:00 a.m., caring for pets, engaging
in iPad activities, performing household chores, talking to her daughter on the telephone,
making dinner and watching television.
ECF No. 23-7 at 20.
The state agency
consultants agreed with Dr. Hood’s findings that the Plaintiff suffers from unspecified
depressive disorder and unspecified anxiety disorder, but that her mood is normal, her
memory is within normal limits, her pace is within normal limits and her concentration is
only mildly deficient.
See ECF Nos. 23-2 at 25; 23-3 at 5-6, 17-18; 23-7 at 20.
Accordingly, because the opinions of the non-examining state agency consultants are not
contrary to but rather supported by the other evidence in the record as a whole, the Court
OVERRULES the Plaintiff’s objection.
New Evidence of Sleep Apnea
The Plaintiff objects to the characterization of her sleep apnea as a “new
impairment.” ECF No. 40 at 2. However, the ALJ and magistrate judge did not reference
sleep apnea as a new impairment and the record does not demonstrate that the Plaintiff
suffers from such a disorder. The evidence throughout the record demonstrates that the
Plaintiff has difficulty sleeping, but no evidence was presented to the ALJ or the Appeals
Council to demonstrate that the Plaintiff suffers from sleep apnea. See ECF Nos. 23-2 at
2-5; 23-3 at 5; 23-6 at 12; 23-7 at 19-21. In fact, the Plaintiff admitted during her testimony
before the ALJ on August 25, 2015, that she underwent a sleep study but had not yet
received the results. ECF No. 23-2 at 46.
A social security case may be remanded to the Commissioner on the basis of new
evidence if (1) the evidence is relevant to the disability determination at the time the
application was first filed; (2) the evidence is material such that the Commissioner’s
decision might reasonably have been different if the new evidence were reviewed;
(3) there is good cause for the claimant’s failure to submit the evidence while the case
was before the Commissioner and (4) the claimant demonstrates the nature of the new
evidence to the reviewing court. Miller v. Barnhart, 64 F. App’x 858, 859-60 (4th Cir.
2003) (unpublished per curiam) (citation omitted); Newman v. Colvin, No. 4:13-cv-00051,
2015 WL 1417051, at *6 (W.D. Va. Mar. 27, 2015). Here, the evidence is not relevant to
the disability determination at the time it was first filed. The Plaintiff filed her claim on
January 3, 2014, which was initially denied on March 31, 2014, and upon reconsideration
on May 9, 2014. Following a hearing, the ALJ denied the Plaintiff’s claim for benefits in
a decision dated September 16, 2015. The Appeals Council denied the Plaintiff’s request
for review on December 16, 2015. It was not until she filed her objections to the R&R
with this Court on April 14, 2017—more than one year and three months after the Appeals
Council denied review—that the Plaintiff provided evidence of sleep apnea. The Plaintiff
does not provide good cause for her failure to submit evidence of her sleep apnea
condition in a timely manner. Indeed, the new evidence may have been material to the
ALJ’s decision and the Plaintiff has demonstrated, by submitting documents to this Court
in her objections, the nature of the new evidence. Nevertheless, because the new
evidence is untimely and the Plaintiff does not provide good cause for its untimeliness,
the objection is OVERRULED.
Evidence Not Referenced by the ALJ
The Plaintiff objects to the ALJ not citing to every piece of evidence in the record.
Absent evidence to the contrary, it must be presumed that the ALJ reviewed all of the
materials in the record and presented by the Plaintiff. See Craig v. Apfel, 212 F.3d 433,
436 (8th Cir. 2000) (“[A]n ALJ is not required to discuss all the evidence submitted, and
an ALJ’s failure to cite to specific evidence does not indicate that it was not considered.”);
Brewer v. Astrue, 7:07-CV-24-FL, 2008 WL 4682185, at *3 (E.D.N.C. Oct. 21, 2008).
Here, the Plaintiff does not indicate what pieces of evidence the ALJ failed to specifically
address and, upon review of her decision, it is clear that the ALJ thoroughly reviewed and
considered the entire administrative record.
Therefore, because “there is no rigid
requirement that the ALJ specifically refer to every piece of evidence in [her] decision,”
Reid v. Comm’r of Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (internal quotation omitted
and citation omitted), the Court OVERRULES this objection.
Finally, the Plaintiff indicates that page eleven of the R&R concludes that “the
ALJ’s decision did not comply with the applicable law and regulations.” ECF No. 37 at
11. The Court is cognizant that this statement is contrary to the other findings contained
within the magistrate judge’s recommendation.
In particular, the magistrate judge
recommends that this Court deny the Plaintiff’s motion for summary judgment and grant
the Commissioner’s motion for summary judgment, which would affirm the ALJ’s
underlying decision denying the Plaintiff social security benefits. Accordingly, because
the Court finds this to be a mere technical error, and because the Court agrees with the
other findings and recommendations of the magistrate judge, this objection is
Although the Plaintiff disagrees with the denial of her disability claim, “[w]here
conflicting evidence allows reasonable minds to differ as to whether a claimant is
disabled, the responsibility for that decision falls on the . . . ALJ.” Craig, 76 F.3d at 589
(internal quotation and citation omitted).
Accordingly, because substantial evidence
supports the ALJ’s decision, the Court OVERRULES the Plaintiff’s objections [ECF No.
40] and ORDERS the Report and Recommendation [ECF No. 37] ADOPTED IN PART
for the reasons more fully stated herein. The Court ORDERS the Commissioner’s Motion
for Summary Judgment [ECF No. 35] GRANTED and the Plaintiff’s Motion for Summary
Judgment [ECF No. 32] DENIED. The Court ORDERS the Plaintiff’s motion for extension
[ECF No. 39] DENIED AS MOOT.
The Court ORDERS this case DISMISSED WITH PREJUDICE and DIRECTS the
Clerk to STRIKE this matter from the active docket, enter a separate judgment order in
favor of the Defendant Commissioner and transmit copies of this Order to all counsel of
record and pro se parties.
DATED: June 28, 2017
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