Lowther v. Commissioner of Social Security
ORDER ADOPTING IN PART REPORT AND RECOMMENDATION. Signed by Chief Judge Gina M. Groh on 06/28/2017. (cwm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
AMBER DAWN LOWTHER,
CIVIL ACTION NO.: 3:16-CV-113
of SOCIAL SECURITY,
ORDER ADOPTING IN PART REPORT AND RECOMMENDATION
On this day, the above-styled matter came before the Court for consideration of a
Report and Recommendation (“R&R”) entered by United States Magistrate Judge Robert
W. Trumble. In the R&R, Magistrate Judge Trumble recommends the Court grant the
Defendant’s Motion for Summary Judgment [ECF No. 16] because substantial evidence
supports the Administrative Law Judge’s (“ALJ”) denial of the Plaintiff’s application for
disability insurance benefits and supplemental security income.
Trumble recommends the Court deny the Plaintiff’s Motion for Summary Judgment [ECF
No. 12] and that this case be dismissed with prejudice.
On August 13, 2012, 1 the Plaintiff protectively filed her application, alleging
disability that began on June 12, 2012. The Plaintiff’s claims were initially denied on
March 20, 2013, and again upon reconsideration on June 18, 2013. On June 30, 2013,
the Plaintiff filed a written request for a hearing, which was held before an Administrative
The ALJ’s decision and the Magistrate Judge’s R&R erroneously state that the Plaintiff’s application was
filed on August 10, 2012. ECF No. 9-2 at 16, ECF No. 22 at 2; but see ECF No. 9-5 at 2, 9.
Law Judge on December 8, 2014. Plaintiff, represented by counsel, Brian D. Bailey, Esq.,
appeared and testified, as did a vocational expert. On January 22, 2015, the ALJ issued
an unfavorable decision to Plaintiff, finding that she was not disabled within the meaning
of the Social Security Act. On June 30, 2016, the Appeals Council denied Plaintiff‘s
request for review, making the ALJ’s decision the final decision of the Commissioner.
On July 26, 2016, Amber Lowther (“Plaintiff”) filed a complaint against the
Commissioner of Social Security. The Plaintiff filed her motion for summary judgment on
October 28, 2016. ECF No. 12. The Commissioner filed her motion for summary
judgement on December 20, 2016. ECF No. 16. Magistrate Judge Trumble then entered
an R&R on April 7, 2017. ECF No. 22. The Plaintiff filed objections to Magistrate Judge
Trumble’s R&R on April 20, 2017. ECF No. 23. The Commissioner filed a response on
April 25, 2017. ECF No. 24.
II. Standards of Review
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 a party 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 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 any party objects and will review the remaining portions 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 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.”).
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.
At step one, the ALJ must determine whether the claimant is engaging in
substantial gainful activity. The ALJ then determines whether the claimant has a severe
impairment at step two. Next, the ALJ determines whether the claimant has a listed
impairment (20 C.F.R. Part 404, Subpart P, Appendix 1) and conducts a Residual
Functional Capacity (“RFC”) assessment. At step four, the ALJ considers the RFC
assessment to determine whether the claimant can perform past relevant work. Finally,
during step five the ALJ Considers the RFC assessment, age, education, and work
experience to determine whether the claimant can perform any other work. See 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 the Plaintiff was not disabled from
any time between June 12, 2012, and January 22, 2015, the date of the ALJ’s decision.
Upon careful consideration of the record, the parties’ motions and the R&R, the
Court finds that Magistrate Judge Trumble committed no clear error with regard to the
portions of the R&R to which the Plaintiff filed no objections. Accordingly, the Court now
considers, de novo, the Plaintiff’s objections to the magistrate judge’s R&R.
As an initial matter, the Court notes that the Plaintiff’s objections are haphazardly
presented, redundant and generally unclear. Indeed, a considerable amount of the
Plaintiff’s objections simply “reiterate the same arguments made by the objecting party
in [her] original papers submitted to the magistrate judge,” and therefore, “the Court
subjects that portion of the report-recommendation challenged by those arguments to
only a clear error review.” Taylor v. Astrue, 32 F. Supp. 3d 253, 260 (N.D.N.Y. 2012).
Upon carefully reviewing the Plaintiff’s objections, the Court finds the following
legally cognizable objections to the Magistrate Judge’s R&R: it (1) acknowledged that “the
opinion of Dr. Warshowsky was not explicitly addressed” in the ALJ’s decision, but still
erroneously found substantial evidence supported the decision; and (2) improperly
considered Dr. Chong’s opinion. ECF No. 23 at 3 (citing ECF No. 22 at 32).
On page thirty-two of Magistrate Judge Trumble’s R&R, it states, “because Dr.
Warshowsky’s evaluation is most relevant to a specific, limited period of time, the
undersigned believes that the ALJ acted reasonably in choosing to not explicitly comment
on the evaluation.” ECF No. 22. The Plaintiff avers that “All parties agree that the ALJ
did not consider the opinion of Dr. Warshowsky.” ECF No. 23 at 2. The Plaintiff supported
this assertion by noting, “[t]he Magistrate readily admits that the opinion of Dr.
Warshowsky was not explicitly addressed.” ECF No. 23 at 3.
Upon reviewing the record, this Court finds that the ALJ did explicitly address Dr.
Next, the undersigned fully considered the July 2012 statement of
rehabilitation source that the claimant was not cognitively capable to return
to work ‘at this time;’ however, steps to return to work were also reported,
such that an inability to work was not advised (Ex. 2F). The undersigned
accorded this statement some, but less than great weight, as it was not
consistent with an assessment of any 12 months of functioning during the
period at issue, was rendered less persuasive in light of updated records,
and was not a function-by-function assessment, having proposed no
Finally, in terms of treating and examining sources, Global Assessment of
Functioning (GAF) scores of 55 to 60 (i.e., indicative of moderate to mildly
moderate symptoms and/or functional difficulties) were assessed during
neuropsychological examinations during 2012 (Exs. 2F and 3F).
ECF No. 9-2 at 26–27.
Considering Dr. Warshowsky’s opinion, the ALJ chose to give it some, but less
than great weight because it was three years old and not consistent with an assessment
of any twelve months of functioning during the period at issue—appropriate and reasoned
considerations that this Court has no reason to overturn or second guess.
It is apparent from the record that the ALJ did in fact explicitly consider Dr.
Warshowsky’s opinion and explained his reasons for according it some, but less than
great weight. The Plaintiff’s objections to the R&R related to the ALJ’s alleged failure to
consider Dr. Warshowsky’s opinion are OVERRULED.
The Plaintiff also objects to how Dr. Chong’s opinion was assessed. This objection
presents a multilayered argument regarding the ALJ’s handling of Dr. Chong’s opinion.
Specifically, the Plaintiff argues that “the Magistrate’s decision allows the Defendant to
assess the opinion of Dr. Chong without requiring the Defendant to recognize and
comment on evidence that is consistent with the opinion of Dr. Chong (i.e. Dr.
Warshowsky).” ECF No. 23 at 3. The Plaintiff further argues that the Magistrate Judge
improperly considered and upheld the ALJ’s decision to consider that Dr. Chong was
hired for litigation purposes in affording his opinion less weight. Finally, the Plaintiff avers
that the R&R “makes a medical presumption that [Dr. Chong’s] diagnostic techniques
cannot overcome the potentially random statements made by a brain-injured
patient/client/claimant.” Id. at 6.
As an initial matter, this Court has already found that the ALJ explicitly considered
Dr. Warshowsky’s opinion; thus, to the extent the Plaintiff relies on the ALJ not
considering Dr. Warshowsky’s opinion, the Court summarily overrules the objection.
The bulk of argument within this objection is that the R&R ratified the ALJ’s
decision to wrongly discredit Dr. Chong because he was hired to evaluate the Plaintiff for
the purpose of litigation, when, in fact, the state agency evaluators are also hired for the
same purpose. The ALJ’s decision must first be reviewed:
Also in terms of examining sources, the undersigned considered the report
of Jason Chong, Psy.D. (Ex. 14F/15F). Dr. Chong maintained that the
claimant had marked difficulties, for example, in daily activities and
maintaining concentration, persistence or pace. He contended the claimant
lived within a highly supportive environment and would likely do poorly in
obtaining and/or maintaining employment. The undersigned accorded this
report less than great weight. First, it is emphasized that the claimant
underwent the examination that formed the basis of the report not in an
attempt to seek treatment for symptoms, but rather, through attorney
referral and in connection with an effort to generate evidence for the current
appeal. Although such evidence is certainly legitimate and deserves due
consideration, the context in which it was produced cannot be entirely
ignored. Next, Dr. Chong appeared to readily dismiss the claimant’s
statements of no abnormality or at most mild abnormality, and chose to rely
heavily if not primarily, upon statements of third parties, such as the
claimant’s mother, which were in direct contradiction and with which
possible bias could not be dismissed. In addition, Dr. Chong’s report
contrasts so sharply with, and is without substantial support from, other
evidence of record, including records of those having seen the claimant,
including for treatment purposed on more than [one] occasion, which
obviously renders it less persuasive.
Finally, in terms of treating and examining sources, Global Assessment of
Functioning (GAF) scores of 55 to 60 (i.e. indicative of moderate to mildly
moderate symptoms and/or functional difficulties) were assessed during
neuropsychological examinations during 2012 2 (Exs. 2F and 3F). In
contrast, during attorney referral examination with Dr. Chong approximately
Here, the ALJ is again referring to Dr. Warshowsky’s opinion—and in fact, using it, to explain why Dr.
Chong’s opinion, as the ALJ determined, was incredible and deserved less than great weight.
one month before hearing, examination made in connection with an effort
to generate evidence for the current appeal and not for treatment, a GAF
score of 29 was advised (i.e. indicative of behavior considerably influenced
by delusions or hallucinations, or serious impairment in communication or
judgment or inability to function in almost all areas) (Ex. 14F/15F). While
still considered a “medical opinion,” by the Social Security Administration,
GAF scores have fallen out of favor in the treatment of mental illness[.]
Overall, the undersigned accorded the GAF scores limited weight. It is
noted by the undersigned, however, that the GAF scores of 55 to 60 are
consistent with and supportive of the limitations found within this decision
and accommodations afforded the claimant; whereas the GAF score of 29
made in connection with an effort to generate evidence for the current
appeal is wholly inconsistent with and unsupported by the evidence of
record and appears so implausible as to not only render it less persuasive,
but also to render it suggestive of exaggeration, further undermining the
persuasiveness of the report to which it was offered
ECF No. 9-2 at 26-27.
The R&R emphasized that although the ALJ’s decision considered Dr. Chong was
hired for purposes of litigation, it still acknowledged that Dr. Chong’s opinion was
“legitimate and deserve[d] due consideration.”
ECF No. 22 at 31.
characterizes the ALJ’s decision, and subsequently the R&R upholding the same, as
discrediting Dr. Chong’s opinion because he was obtained through an attorney referral
for the purpose of presenting evidence of disability to the commissioner. Although not
entirely without truth, the Plaintiff’s arguments distort the record before this Court.
The Code of Federal Regulations (“CFR”) clearly describes how opinion evidence
shall be evaluated in claims for social security benefits. See 20 C.F.R. § 416.927. The
Defendant is to evaluate every medical opinion received.
20 C.F.R. § 416.927(c).
Moreover, there are a number of factors to be considered when deciding the appropriate
weight given to any medical opinion. Id. Specifically, the Defendant considers the
examining relationship and treatment relationship, including its length and nature,
between the medical source and the claimant; supportability of the opinion; consistency
with the record; specialization of the source and other factors tending to support or
contradict the opinion. 20 C.F.R. § 416.927(c)(1)-(6).
Here, the ALJ followed the regulation in examining the abovementioned factors.
The ALJ “considered the report of Jason Chong, Psy.D.[,]” and “accorded this report less
than great weight.” ECF No. 9-2 at 26. The ALJ noted that Dr. Chong was an examining
source, and that the treatment relationship was not for seeking treatment, but instead it
was “to generate evidence for the current appeal.” Id. The ALJ explained, “the context
in which [the report] was produced cannot be entirely ignored. Id. at 27. Next, the ALJ
noted that the “report contrasts so sharply with, and is without substantial support from,
other evidence of record, including records of those having seen the claimant, including
for treatment purposes, on more than one occasion, which obviously renders it less
persuasive.” Id. Finally, the ALJ considered Dr. Chong’s determination that the Plaintiff
had a GAF score of twenty-nine. When compared with other GAF scores in the record,
the ALJ found that a GAF score of twenty-nine “is wholly inconsistent with and
unsupported by the evidence of record and appears so implausible as to not only render
it less persuasive, but also to render it suggestive of exaggeration, further undermining
the persuasiveness of the report in which it was offered.” Id.
The ALJ correctly utilized the appropriate regulation in considering Dr. Chong’s
opinion. The ALJ’s analysis is unambiguous and adequately supported by substantial
evidence within the record.
Accordingly, the Plaintiff’s remaining objections are
Because substantial evidence supports the ALJ’s decision, the Court
OVERRULES the Plaintiff’s objections [ECF No. 23] and ORDERS the Report and
Recommendation [ECF No. 22] ADOPTED IN PART. 3 The Court ORDERS that the
Commissioner’s Motion for Summary Judgment [ECF No. 16] is GRANTED and the
Plaintiff’s Motion for Summary Judgment [ECF No. 12] is DENIED.
The Court ORDERS that this matter be DISMISSED WITH PREJUDICE and
STRICKEN from its active docket.
Pursuant to Federal Rule of Civil Procedure 58, the Clerk of Court is DIRECTED
to enter a separate judgment order in favor of the Defendant Commissioner.
The Clerk is further DIRECTED to transmit copies of this Order to all counsel of
DATED: June 28, 2017
The Court declines to adopt only the portion of the Magistrate Judge’s R&R finding that the ALJ did not
explicitly consider Dr. Warshowsky’s opinion.
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