Torlone v. Commissioner of Social Security et al
Filing
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ORDER ADOPTING REPORT AND RECOMMENDATION. Signed by Chief Judge Gina M. Groh on 02/22/2019. (cwm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
DENISE TORLONE,
Plaintiff,
v.
CIVIL ACTION NO.: 3:18-CV-53
(GROH)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before this Court for consideration of
the Report and Recommendation (“R&R”) of United States Magistrate Judge Michael J.
Aloi [ECF No. 15], filed on November 6, 2018. In his R&R, Magistrate Judge Aloi finds
that the ALJ’s decision is supported by substantial evidence.
Accordingly, he
recommends that the Court grant the Defendant’s Motion for Summary Judgment [ECF
No. 13] and deny the Plaintiff’s Motion for Summary Judgement [ECF No. 9].
I. Background
Denise Torlone (“Plaintiff”) filed an application for disability insurance benefits on
April 5, 2014 and supplemental security income on April 7, 2014. The applications were
initially denied on June 30, 2014, and again upon reconsideration on October 2, 2014.
Thereafter, the Plaintiff requested a hearing, which was held before an Administrative
Law Judge (“ALJ”) on December 1, 2016. On March 30, 2017, the ALJ issued her
decision that the Plaintiff was not disabled. The Appeals Council denied the Plaintiff’s
request for review on February 22, 2018, and the Plaintiff timely filed her complaint in this
Court on April 12, 2018 [ECF No. 1]. On July 18, 2018, the Plaintiff filed her motion for
summary judgment. ECF No. 9. The Commissioner filed her motion for summary
judgement on September 18, 2018. ECF No. 13. Having reviewed the parties’ briefs,
Magistrate Judge Aloi entered his R&R on November 6, 2018. ECF No. 15.
II. Standards of Review
A. Review of the R&R
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court is required to make a de novo
review of those portions of the R&R to which objection is made. However, failure to file
objections permits the district court to review the R&R under the standard that it believes
to be appropriate, and if parties do not object to an issue, the parties’ right to de novo
review is waived. See Webb v. Califano, 468 F. Supp. 825 (E.D. Cal. 1979). Additionally,
if the Plaintiff’s objections simply “reiterate[] the same arguments made by the objecting
party in [her] original papers submitted to the magistrate judge . . . 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). Therefore, the Court
will conduct a de novo review of those portions of the R&R to which a party makes new
objections and will review the remaining portions of the R&R for clear error.
B. Review of the ALJ’s 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 Asupported by substantial evidence@ means Amore than a
mere scintilla@ and Asuch relevant evidence as a reasonable mind might accept as
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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) (AThis 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) (AWe 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 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. Next, the ALJ determines whether the claimant has a severe
impairment. Then, 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
(ARFC@) assessment. At step four, the ALJ considers the RFC assessment to determine
whether the claimant can perform past relevant work. Finally, at 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
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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
because the Plaintiff has the residual functional capacity to perform her past relevant work
as a teacher’s aide and any physical limitations can be reasonably accommodated. R.
12-24.
III. Discussion
Pursuant to Magistrate Judge Aloi’s R&R, as well as 28 U.S.C. § 636(b)(1)(C) and
Federal Rule of Civil Procedure 6, objections were due within fourteen plus three days
after entry of the R&R. The Plaintiff timely filed objections on November 20, 2018. ECF
No. 16. Accordingly, this Court will review any portion of the R&R to which the Plaintiff
objects de novo. The Court will review the remainder of the R&R for clear error.
In this matter, Magistrate Judge Aloi found that the ALJ’s decision is supported by
substantial evidence.
ECF No. 15 at 40-44.
Specifically, Magistrate Judge Aloi
determined that the ALJ properly considered the record as a whole and the ALJ’s
credibility determination was proper based on the record. Id. Magistrate Judge Aloi
further found that the ALJ’s determination that Plaintiff’s cardiac condition and resulting
bilateral leg edema are improved with medication modification and can be reasonably
accommodated is reasonable and based on substantial evidence. Id. Lastly, he found
that the ALJ properly completed the two-tiered symptoms analysis. Id. Accordingly,
Magistrate Judge Aloi concluded that there is sufficient evidence to support the ALJ’s
determination that the Plaintiff is not disabled. Id.
The Plaintiff objects to the R&R arguing that Magistrate Judge Aloi inappropriately
reweighed the evidence in order to affirm the ALJ’s subjective symptom analysis. ECF
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No. 16 at 1. The Plaintiff’s first objection to the R&R is that “even if the administrative
record did not support a disability finding from November 20, 201[2] through November
14, 2013, the ALJ was still required to determine if Torlone was disabled at any time
through her date last insured, December 30, 2016.” Id. at 2. Plaintiff argues that
Magistrate Judge Aloi made an assumption that because Plaintiff “was performing
strenuous and substantial work over a year after her alleged onset date” she was not
disabled at any point in the four-year relevant time period. Id. Plaintiff asserts that this
assumption formed the basis of Magistrate Judge Aloi’s finding that the ALJ properly
completed the two-tiered symptom analysis. Id.
However, this Court does not find that Magistrate Judge Aloi was making the
assumption set forth by Plaintiff. The magistrate judge’s finding was not based solely on
the evidence that Plaintiff performed strenuous and substantial work over a year after her
alleged onset date. While this evidence was taken into consideration when reviewing the
record as a whole, this was not the only evidence in the record to support this finding.
Further evidence includes “the findings of Dr. Binder and Dr. Boukhemis, both of whom
were of the opinion that Plaintiff could perform a range of light work with postural and
environmental limitations” and there being no “evidence to suggest Plaintiff would be
unable to return to her past relevant work as a teacher’s aide given Plaintiff’s [residual
functional capacity] and her medical records taken as a whole.” ECF No. 15 at 44.
Magistrate Judge Aloi further found that “the opinions of treating physicians and nontreating, non-examining physicians were not in conflict and the ALJ properly afforded the
opinions weight.” Id. Accordingly, it is clear that Magistrate Judge Aloi did not reweigh
the evidence in order to affirm the ALJ’s subjective symptom analysis, but rather reviewed
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the record as a whole before finding that the ALJ’s analysis was adequate. Accordingly,
this objection is without merit and is hereby OVERRULED.
Next, the Plaintiff argues that Magistrate Judge Aloi “dismissed the importance” of
the credible evidence that Plaintiff suffers from bilateral leg edema and may have a need
to elevate her legs. ECF No. 16 at 3. Plaintiff avers that Magistrate Judge Aloi dismissed
this because it was not evident that the impairment existed since the Plaintiff’s amended
alleged onset date. Id.
However, the Plaintiff ignores the remainder of Magistrate Judge Aloi’s finding
regarding Plaintiff’s bilateral leg edema. Magistrate Judge Aloi found the record included
treatment notes from Plaintiff’s medical records and a consultative examination that
supported Plaintiff’s edema in her legs had improved or was minimal and that she could
be expected to stand and walk approximately five to six hours in an eight-hour day. ECF
No. 15 at 43. Further, the bilateral leg edema could be reasonably accommodated and
is improved with medication modification. Id. Accordingly, it is clear that Magistrate Judge
Aloi did not “dismiss[] the importance” of this evidence. Rather, he considered the record
as a whole and found the ALJ’s determination was supported by substantial evidence.
Therefore, this objection is without merit and is hereby OVERRULED.
Upon careful consideration of the record, the parties’ motions and the R&R, the
Court finds that Magistrate Judge Aloi committed no clear error with regards to the
portions of the R&R to which Plaintiff filed no objections.
IV. Conclusion
Accordingly, it is the opinion of the Court that Magistrate Judge Aloi’s Report and
Recommendation [ECF No. 15] should be, and is, hereby ORDERED ADOPTED. For
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the reasons more fully stated in the Report and Recommendation, this Court ORDERS
that the Plaintiff’s Motion for Summary Judgment [ECF No. 9] is DENIED and the
Defendant’s Motion for Summary Judgment [ECF No. 13] is GRANTED.
The Court further ORDERS that this matter be DISMISSED WITH PREJUDICE
and STRICKEN from the Court’s active docket.
Pursuant to Federal Rule of Civil
Procedure 58, the Clerk is DIRECTED to enter a separate order of judgment in favor of
the Defendant.
The Clerk is further DIRECTED to transmit copies of this Order to all counsel of
record herein.
It is so ORDERED.
DATED: February 22, 2019
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