Doty v. Commissioner of Social Security
ORDER ADOPTING 19 REPORT AND RECOMMENDATION: This Court ORDERS that the Plaintiffs Motion for Judgment on the Pleadings [ECF No. 11 is GRANTED and the Defendants Motion for Summary Judgment [ECF No. 13 is DENIED. The Court further ORDERS that this matter be REMANDED to the agency for further analysis of the step three inquiry. Signed by Chief Judge Gina M. Groh on 4/11/17. (njz)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
THOMAS LEE DOTY,
CIVIL ACTION NO.: 3:16-CV-37
COMMISSIONER OF SOCIAL SECURITY,
ORDER ADOPTING REPORT AND RECOMMENDATION
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 James E.
Seibert. Magistrate Judge Seibert issued his R&R [ECF 16] on September 18, 2014. In
the R&R, Magistrate Judge Seibert recommends the Court grant the Plaintiff’s Motion for
Judgment on the Pleadings [ECF No. 11] because the Administrative Law Judge’s (“ALJ”)
decision did not comply with the applicable law and regulations. Magistrate Judge Seibert
further recommends the Court deny the Defendant’s Motion for Summary Judgment [ECF
No. 13] and that this case be remanded to the agency for further analysis of the step three
The Plaintiff, Thomas Lee Doty, applied for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”) on May 15, 2012, alleging a disability beginning on
December 17, 2008. ECF No. 7-2 at 13. Plaintiff’s claims were initially denied on August
1, 2012, and upon reconsideration on April 5, 2013. Id. The Plaintiff then requested a
hearing before an ALJ, which was held on September 29, 2014. Id. At the hearing, the
Plaintiff was represented by Ambria Adkins. Id. Plaintiff testified during the hearing, as
did a Vocational Expert (“VE”), Larry Ostrowski, Ph.D. Id. At the hearing, the Plaintiff
amended his alleged onset date to May 15, 2012. Id. On October 29, 2014, the ALJ
found that the Plaintiff was not disabled under sections 216(i) and 223(d) of the Social
Security Act. Id. at 23. The Plaintiff appealed this decision to the Appeals Council, which
denied his request. Id. at 2.
On April 5, 2016, the Plaintiff filed this action [ECF No. 1] for judicial review of an
adverse decision of the Commissioner of Social Security (“Commissioner”) denying his
claims for DIB and SSI under Titles II and XVI of the Social Security Act.
Commissioner filed her Answer [ECF No. 6] on June 13, 2016. The Plaintiff then filed his
Motion for Judgment on the Pleadings [ECF No. 11] on July 14, 2016. The Commissioner
filed her Motion for Summary Judgment [ECF No. 13] on August 3, 2016. Plaintiff filed a
Response [ECF No. 16] on August 30, 2016.
The Defendant timely filed her objections to the R&R [ECF No. 20] on March 20,
2017, and the Plaintiff filed a Response in Opposition [ECF No. 21] on April 3, 2017. 1 The
Defendant objects to Magistrate Judge Seibert’s finding that the ALJ failed to perform an
adequate step-three analysis. Specifically, the Defendant argues that the magistrate
judge improperly determined there was ample evidence in the record to require a
discussion of the Plaintiff’s impairments and the Listings. The Defendant relies on Cook
v. Heckler, 783 F.2d 1168 (4th Cir. 1086), for the proposition that the “ALJ is only required
Plaintiff’s Response contradicts itself. In his Response, the Plaintiff states he “respectfully requests
that this court reject the proposed findings and recommendations of the magistrate judge.” However, in his
conclusion, he “requests this court to adopt the Magistrate Judge’s Report and Recommendation.” Given
the apparent haste with which the Plaintiff’s response was written, the Court largely disregards its contents.
to evaluate a listing when there is ample evidence in the record to support a determination
that a listing could be met or equaled.” See ECF No. 20 at 5. The Defendant maintains
that “the facts in this case do not remotely suggest that Plaintiff met or equaled any of the
listed impairments” and therefore the ALJ’s decision “provided sufficient articulation with
respect to the listings criteria.” Id. at 2-3.
II. Standards of Review
A. Review of the R&R
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must review de novo those
portions of the magistrate judge’s findings to which the Defendant objects. 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 if parties do not object to an issue, the
parties’ right to de novo review is waived as to that issue. See Orpiano v. Johnson, 687
F.2d 44, 47 (4th Cir. 1982) (citing Webb v. Califano, 468 F. Supp. 825 (E.D. Cal. 1979)).
Therefore, this Court will conduct a de novo review only as to those portions of the R&R
to which the Defendant objects and will review the remaining portions of the R&R for clear
B. Review of the ALJ Decision
The Social Security Act limits this Court’s review of a final decision of the
Commissioner to: (1) whether substantial evidence supports the Commissioner’s
decision, Richardson v. Perales, 402 U.S. 389, 390 (1971), and (2) whether the
Commissioner applied the correct legal standards, Hays v. Sullivan, 907 F.2d 1453, 1456
(4th Cir. 1990). The phrase “supported by substantial evidence” means “more than a
mere scintilla” and “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” See Perales, 402 U.S. at 401 (citing Consol. Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938)).
A reviewing court must not re-weigh the evidence or substitute its judgment for that
of the Commissioner, so long as that decision is supported by substantial evidence. Hays,
907 F.2d at 1456.
Ultimately, it is the duty of the ALJ reviewing a case, not the
responsibility of the Court, 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.”); see also Seacrist v.
Weinberger, 538 F.2d 1054, 1056-57 (4th Cir. 1976) (“We note that it is the responsibility
of the [Commissioner] and not the courts to reconcile inconsistencies in the medical
evidence, and that it is the claimant who bears the risk of nonpersuasion.”).
C. Evaluation Process
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 the claimant is disabled
or not disabled at a certain step, 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, the ALJ found that the Plaintiff had a number of
severe impairments, but supposedly relied on the first ALJ’s determination that the
Plaintiff did not have an impairment or combination of impairments that meet or medically
equal the severity of one the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. See ECF No. 7-2 at 17. At issue in the instant case is the ALJ’s failure to
provide a sufficient explanation for this determination.
Upon careful consideration of the record, the parties motions and the R&R, the
Court finds Magistrate Judge Seibert committed no clear error with regard to the portions
of the R&R to which the Plaintiff does not object. Further, upon de novo review of the
ALJ’s step three analysis, this Court agrees with the magistrate judge that it was
inadequate. In Cook v. Heckler, the Fourth Circuit rejected an ALJ’s decision where it
failed “to explain the reasons for the determination that Cook’s arthritis did not meet or
equal a listed impairment.” 783 F.2d 1168, 1173 (4th Cir. 1986). The Court continued,
“[the ALJ] also failed to compare Cook’s symptoms to the requirements of any of the four
listed impairments, except in a very summary way.” Id.
Courts in this District have routinely held that an AALJ must identify the relevant
listings and then compare each of the listed criteria to the evidence of the claimant’s
symptoms at step three of the sequential evaluation. This Court has further held that an
ALJ’s finding will not be upheld if the ALJ “simply restates verbatim the language of the
relevant listings.” Hardman v. Comm’r of Soc. Sec., Civ. Action No.: 5:14CV132, 2015
WL 1221357, at *2 (N.D. W. Va. Mar. 17, 2015) (internal citations and quotations omitted).
Here, the ALJ did not even do that much. The entirety of the ALJ’s step three
discussion, with regard to the Plaintiff’s physical impairments, was as follows:
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 CFR Part 404, Supbart P, Appendix 1 (20 CFR 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925 and 416.926). In so concluding,
the undersigned has appropriately evaluated medical and other evidence
pertaining to the claimant’s medically determinable impairments in
conjunction with all the relevant severity criteria contained within the 1.00
Musculoskeletal System, 3.00 Respiratory System, 11.00 Nuerological, and
12.00 Mental Disorders series of listed impairments.
ECF No. 7-2 at 16.
This Court, and others throughout the District, have previously noted that an “ALJ
is required to give more than a mere conclusory analysis of the plaintiff’s impairments
pursuant to the regulatory listings.” Fraley v. Astrue, Civil Action No. 5:07CV141, 2009
WL 577261, at *25 (N.D. W. Va. Mar. 5, 2009) (citation omitted); see also Bentley v.
Comm’r of Soc. Sec., Civil Action No. 1:13CV163, 2014 WL 906587, at *24 (N.D. W. Va.
March 7, 2014) (finding the ALJ had provided “no explanation that the Court can rely on
that indicates why Plaintiff does not meet Listing 1.02A”).
The ALJ’s reasoning is
essential because “a record of the basis for the ALJ's ruling” is “[a] necessary predicate
to engaging in substantial evidence review.” Radford v. Colvin, 734 F.3d 288, 295 (4th
In sum, an ALJ must provide a sufficient explanation at step three, or
substantial evidence will not be found to support the ALJ’s decision.
Recently, the Fourth Circuit has reinforced this approach. In Fox v. Colvin, the
Court held that an ALJ’s decision “failed to provide sufficient reasoning to allow for
meaningful judicial review” when “the ALJ did not apply findings to the disability listing.”
No. 14B2237, 2015 WL 9204287, at *1 (4th Cir. 2015) (unpublished per curiam). The
Court explained that “the ALJ engaged in the same conclusory analysis that we found to
be unacceptable in Radford.” Id. at *4. In Fox, the Court found that the ALJ’s analysis
was “perfunctory and offered nothing to reveal why he was making his decision.” Id. The
same is true here; the ALJ’s decision at step three offers absolutely no explanation for
her findings and does not apply findings to the listings. This Court takes heed the Fourth
Circuit’s warning in Fox:
The magistrate judge recognized the ALJ’s failure to provide
sufficient reasoning, yet he still engaged in a fact-finding expedition. . . . In
turn, the district court concurred because the magistrate judge “was able to
engage in a substantive, meaningful review of the final decision of the
Commission despite the ALJ’s error.” Despite both courts’ recognition of the
ALJ’s error, they engaged in an analysis that the ALJ should have done in
the first instance. To do so was in error.
Id. at *4 (internal citations omitted) (emphasis added). This Court shall not attempt a factfinding expedition to discern whether the record can support the ALJ’s ultimate
conclusion—that must be done by the ALJ. Therefore, the ALJ’s decision is not supported
by substantial evidence, and her step three analysis is impermissibly inadequate.
Accordingly, the Defendant’s objection is OVERRULED.
Thus, it is the opinion of this Court that Magistrate Judge Seibert’s Report and
Recommendation [ECF No. 19] should be, and is, hereby ORDERED ADOPTED. For
the reasons more fully stated in the Report and Recommendation, this Court ORDERS
that the Plaintiff’s Motion for Judgment on the Pleadings [ECF No. 11] is GRANTED and
the Defendant’s Motion for Summary Judgment [ECF No. 13] is DENIED. The Court
further ORDERS that this matter be REMANDED to the agency for further analysis of the
step three inquiry.
The Clerk is DIRECTED to transmit copies of this Order to all counsel of record
DATED: April 11, 2017
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