Wetmore v. Commissioner of Social Security

Filing 17

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 14 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE: DENYING 9 plaintiff's Motion for Summary Judgment and GRANTING 11 defendant's Motion for Summary Judgment. This case is DISMISSED and STRICKEN from the active docket of this Court. Clerk directed to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 5/11/10. (cc)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA KEVIN S. WETMORE, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE I. Background Civil Action No. 5:09CV38 (STAMP)

The plaintiff, Kevin S. Wetmore, filed an application on February 2, 2007, for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB") under Titles XVI and II, respectively, of the Social Security Act, alleging disability beginning on December 1, 2006, due to a back injury. The Social Security Administration denied the plaintiff's application initially and on reconsideration. The plaintiff

requested a hearing, and a hearing was held on June 5, 2008, before Administrative Law Judge ("ALJ") J.E. Sullivan. The plaintiff

testified on his own behalf, as did Vocational Expert ("VE") Larry Bell. On June 29, 2008, the ALJ issued a decision finding that the

plaintiff was not under a "disability." The Appeals Council denied the plaintiff's request for review, thus making the ALJ's decision the final decision of the Commissioner. Thereafter, the plaintiff

filed the present civil action pursuant to 42 U.S.C. § 405(g),

seeking judicial review of an adverse decision by the defendant, Commissioner of Social Security. The case was referred to United States Magistrate Judge James E. Seibert for submission for of proposed findings to of 28 fact and

recommendation

disposition

pursuant

U.S.C.

§ 636(b)(1)(B). Both the plaintiff and the defendant filed motions for summary judgment. The plaintiff also filed a reply brief to On October 26, 2009, and recommendation

the defendant's motion for summary judgment. the magistrate judge entered a report

recommending that the defendant's motion for summary judgment be granted, that the plaintiff's motion for summary judgment be denied, and that this case be stricken from the active docket of this Court. Upon submitting his report, Magistrate Judge Seibert

informed the parties that if they objected to any portion of his proposed findings of fact and recommendation for disposition, they must file written objections within ten days after being served with a copy of the report. The plaintiff filed objections, to

which the defendant filed a response, and the plaintiff did not reply. For the reasons set forth below, this Court affirms and

adopts the report and recommendation of the magistrate judge. II. Applicable Law

Pursuant to 28 U.S.C. § 636(b)(1)(C), 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

2

magistrate judge's findings and recommendation will be upheld unless they are "clearly erroneous." Supp. 825 (E.D. Cal. 1979). See Webb v. Califano, 458 F. the plaintiff filed

Because

objections, this Court will undertake a de novo review as to those portions of the report and recommendation to which objections were made. III. Discussion

In his motion for summary judgment, the plaintiff contends that the final decision of the Commissioner is not supported by substantial evidence. Specifically, the plaintiff argues that the

ALJ erred by finding that the plaintiff did not suffer from an impairment that met or equaled § 1.04 of the Commissioner's Listing of Impairments, 20 C.F.R., Part 404, Subpart P, Appendix 1. Additionally, the plaintiff argues that the ALJ erred by finding that the plaintiff's statements concerning the intensity,

persistence, limiting effect of his symptoms, and side effects of his medications were not credible to the extent that they were inconsistent with the ALJ's findings that the plaintiff could perform a limited range of light work. The Commissioner contends, in contrast, that the plaintiff's arguments lack merit, that substantial evidence supports the ALJ's decision that the plaintiff's lumbar impairments did not meet the criteria for § 1.04 of the listings, and that the ALJ correctly evaluated the plaintiff's credibility.

3

Magistrate Judge Seibert issued a report and recommendation, in which he held that substantial evidence supports the ALJ's finding that the plaintiff did not have an impairment or

combination of impairments that meets or medically equals one of the listed impairments in § 1.04. Furthermore, the magistrate

judge found that substantial evidence also existed to discredit the plaintiff's limited statements of his regarding symptoms, based the and upon intensity, the side persistence, effects of the

effect

medications.

Accordingly,

these

findings,

magistrate judge held that the plaintiff was not disabled on or before his date last insured. The plaintiff thereafter filed objections to the magistrate judge's report and recommendation. In these objections, the

plaintiff argues that the magistrate judge incorrectly analyzed § 1.04 by finding that the plaintiff was unable to ambulate effectively. Section 1.04A, the plaintiff contends, does not

require a claimant to show that he cannot ambulate effectively to meet the listing requirements. that the magistrate judge's Moreover, the plaintiff contends assessment of the plaintiff's

credibility was improper. The defendant's response refutes each of these objections. An ALJ's findings will be upheld if supported by substantial evidence. See Milburn Colliery Co. v. Hicks, 138 F.3d 524, 528

(4th Cir. 1998). Substantial evidence is that which a "`reasonable mind might accept as adequate to support a conclusion.'" Hays v.

4

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 (1966)). A. Whether the ALJ Erred in Determining that the Plaintiff Did Not Suffer from an Impairment that Met or Equaled Listing § 1.04 The magistrate judge concluded that substantial evidence supports the ALJ's decision that the plaintiff's impairment does not meet the criteria under § 1.04 of the listings. novo review of the record, this Court agrees. "For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment After a de

that manifests only some of those criteria, no matter how severely, does not qualify." Sullivan v. Zebley, 493 U.S. 521, 530 (1990).

The plaintiff contends that he meets the criteria under § 1.04A of the listings. As the magistrate judge noted, to meet this section, the plaintiff must have a spine disorder accompanied by: (1) evidence of nerve root compression characterized by neuro-anatomic distribution of pain; (2) limitations of motion of the spine; (3) motor loss (atrophy with associated muscle weakness or muscle weakness); and (4) if there is involvement of the lower back,

5

positive straight-leg raising test (sitting and supine). 20 C.F.R. 04, Subpt. P, App. 1, Listing 1.04A. The record supplies substantial evidence that the plaintiff does not meet the criteria for listing § 1.04. medical report dated December 15, 2006, Particularly, a that the

indicates

plaintiff's lumbar spine is well-aligned, and that he was diagnosed with tiny focal herniation with moderate spinal stenosis. 216.) (R.

A later report indicates no significant impress or stenosis

at L1-2, a mild degree of spinal stenosis at L3-4, possible minimal herniation and relative spinal stenosis at L4-5, and no significant stenosis at L5-S1 with the most significant finding being severe spinal stenosis at L2-3. (R. 217-19.) Two letters, dated February 12, 2007, indicated only definite stenosis at the 2-3 level. 220-22.) Therefore, substantial evidence supports the (R.

ALJ's

determination that the plaintiff's impairment does not meet the requirements of listing § 1.04A. This Court recognizes, however, that in his report and

recommendation, the magistrate judge inappropriately referred to § 1.04C by finding that the plaintiff could not meet the

requirements of § 1.04A of the listing because no evidence was provided that he was unable to ambulate effectively. Under 28

U.S.C. § 636(b)(1), a "judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. evidence or recommit the The judge may also receive further matter to the magistrate with

6

instructions." effectively, a

Disregarding whether the plaintiff can ambulate factor that this Court, as well as both the

plaintiff and the defendant, agree is not included in the § 1.04A analysis at issue in this case, this Court holds, for the reasons stated above, that substantial evidence supports the ALJ's

determination that the plaintiff did not meet the requirements of listing § 1.04A. B. Whether the ALJ Erred by Discrediting the Plaintiff's

Complaints Concerning the Intensity, Persistence, Limiting Effects of His Symptoms, and Side Effects of His Medications The plaintiff also claims that the ALJ erred in concluding that he was not credible concerning his testimony of pain and limitation. In evaluating subjective complaints of pain, an ALJ

must follow the procedure outlined in Craig v. Chater, which requires him to determine: (1) that there is evidence of a

medically determinable impairment that was capable of producing the pain or symptoms alleged; and (2) the intensity and persistence of the plaintiff's pain, and the extent to which it affects his work. 76 F.3d 585, 594 (4th the Cir. 1996). After considering that the the ALJ

plaintiff's

claim,

magistrate

judge

found

correctly applied the Craig analysis and found the plaintiff's testimony not to be entirely credible, given the inconsistencies between the plaintiff's subjective complaints and the record. This Court agrees with the magistrate judge's conclusion. The magistrate judge has cited numerous inconsistencies between the

7

plaintiff's reports of pain and the medical evidence.

For this

reason, this Court affirms the magistrate judge's finding with respect to this issue. IV. Conclusion

Based upon a de novo review, this Court hereby AFFIRMS and ADOPTS the magistrate judge's report and recommendation in its entirety. Thus, for the reasons stated above, the defendant's

motion for summary judgment is GRANTED, and the plaintiff's motion for summary judgment is DENIED. It is further ORDERED that this

case be DISMISSED and STRICKEN from the active docket of this Court. IT IS SO ORDERED. The Clerk is directed to transmit a copy of this memorandum opinion and order to counsel of record herein. Pursuant to Federal Rule of Civil Procedure 58, the Clerk is directed to enter judgment on this matter. DATED: May 11, 2010

/s/ Frederick P. Stamp, Jr. FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE

8