Lilly v. Commissioner of Social Security
MEMORANDUM OPINION AND ORDER Affirming And Adopting re 23 Report and Recommendation Of Magistrate Judge Denying re 11 MOTION for Summary Judgment filed by Nancy A. Lilly, re 1 Complaint filed by Nancy A. Lilly, Granting 21 MOTION for Summary Judgment filed by Commissioner of Social Security. Clerk is directed to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 5/20/11. (mji)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
NANCY A. LILLY,
Civil Action No. 5:10CV65
MICHAEL J. ASTRUE,
Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
The plaintiff, Nancy A. Lilly, filed an application for
Disability Insurance Benefits (“DIB”) under Title II of the Social
Security Act. In the application, the plaintiff alleges disability
since December 15, 2001. The Social Security Administration denied
the plaintiff’s application initially and on reconsideration.
plaintiff requested a hearing, and a hearing was held on May 15,
2008, before Administrative Law Judge (“ALJ”) Karl Alexander.
plaintiff, represented by counsel, testified on her own behalf, as
did Vocational Expert (“VE”) Lawrence S. Ostrowski.
On August 18,
2008, the ALJ issued a decision finding that the plaintiff had the
following severe impairments: history of abdominal pain due to
endometriosis and lysis of adhesions status post laparoscopic
surgery in March 2006; diagnosis of fibromyalgia; very early and
functioning; anxiety disorder, not otherwise specified; and panic
impairments or combinations of impairments met the criteria for the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
The ALJ determined that the plaintiff has the residual functional
capacity (“RFC”) to perform light work; requires a sit-stand
option; can perform postural movements occasionally except cannot
kneel, crawl, or climb ladders, ropes or scaffolds; should not be
exposed to temperature extremes or hazards; should work in a lowstress
unskilled work involving only routine and repetitive instructions
and tasks; and should not have any interaction with the general
public and no more than occasional interaction with supervisors and
Thus, the ALJ concluded that the plaintiff is not
capable of performing past relevant work.
The ALJ determined that
the plaintiff was not “disabled” within the meaning of the Act and
therefore not entitled to DIB.
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 plaintiff previously applied for DIB on March 17, 2004.
The Social Security Administration denied the claims at the initial
and the reconsideration level.
The plaintiff’s first application
was denied at the hearing level on April 3, 2006.
requested a review of the decision and the Appeals Council affirmed
United States Magistrate Judge James E. Seibert
Commissioner’s decision to deny the plaintiff benefits was proper.
Seibert’s report and recommendation, granting the Commissioner’s
motion for summary judgment and dismissing the plaintiff’s case.
On May 1, 2006, less than one month after the ALJ issued an
unfavorable decision in her first claim, the plaintiff filed the
present DIB claim.
The ALJ found that there was no basis to reopen
the prior decision because the plaintiff neither presented new and
material evidence nor gave any other reason for reopening the case.
The present case was referred to United States Magistrate
Judge David J. Joel for submission of proposed findings of fact and
§ 636(b)(1)(B). Both the plaintiff and the defendant filed motions
for summary judgment.
On December 13, 2010, the magistrate judge
defendant’s motion for summary judgment be granted, that the
plaintiff’s motion for summary judgment be denied, and that the
decision of the Commissioner be affirmed.
Upon submitting his
report, Magistrate Judge Joel 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 fourteen days after being served with a copy of the report.
The plaintiff filed timely objections.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
recommendation to which objection is timely made.
As to those
portions of a recommendation to which no objection is made, a
magistrate judge’s findings and recommendation will be upheld
unless they are “clearly erroneous.”
See Webb v. Califano, 458 F.
objections, this Court will undertake a de novo review as to those
portions of the report and recommendation to which objections were
In her motion for summary judgment, the plaintiff contends
that the final decision of the Commissioner is not supported by
Specifically, The plaintiff contends that:
(1) there is a lack of support for the Commissioner’s finding that
Listing 12.04C was not met because (a) the Commissioner relied on
the opinions of the State agency psychologists and discounted the
opinion of Dr. Joseph without providing adequate reasons for doing
so, (b) the ALJ stated in his decision that Dr. Joseph ignored
plaintiff’s MMPI-2 examination, and (c) the ALJ failed to comply
with the minimum explanation requirements articulated in Cook v.
Heckler, 783 F.2d 1168 (4th Cir. 1983); and (2) the ALJ erred in
Additionally, the plaintiff contends that the Appeals Council erred
in determining that the additional evidence submitted did not
provide a basis for reviewing the ALJ’s decision finding that the
plaintiff was not disabled.
The Commissioner contends that: (1) the plaintiff failed to
meet her burden of demonstrating that her condition met listing
12.04C; and (2) the ALJ reasonably concluded that the plaintiff’s
bladder condition was not a severe impairment at step two of the
sequential evaluation process.
Magistrate Judge Joel issued a report and recommendation, in
which he held that substantial evidence supports the ALJ’s decision
to discount the opinion of Dr. Joseph and to rely on the opinions
of the state agency psychologists because Dr. Joseph’s opinion is
inconsistent with her objective findings and other psychological
evidence in the record.
The magistrate judge next held that the
ALJ was not required to call a medical expert to determine that the
plaintiff’s MMPI-2 results were invalid because he did not request
or interpret the underlying “raw” test data. Magistrate Judge Joel
next found that the ALJ provided sufficiently specific reasons in
his decision as to why the plaintiff failed to meet listing 12.04C
by incorporating the prior decision into his opinion and weighing
the impact of new evidence on that decision.
The magistrate judge
held that substantial evidence supports the ALJ’s determination
that the plaintiff’s bladder condition was not severe.
the magistrate judge stated that the Appeals Council correctly
determined that the medical evidence submitted regarding the use of
a catheter was not new and material information providing a basis
for changing the ALJ decision.
The plaintiff thereafter filed objections to the magistrate
judge’s report and recommendation.
In these objections, the
supported the ALJ’s decision not to assign controlling weight to
Dr. Joseph’s opinion.
She argues that the ALJ did not provide
legally sufficient reasons for the lack of weight afforded the
assigning weight to medical opinions.
She next objects to the
finding that the ALJ was not required to call a psychological
medical expert, that the ALJ had not interpreted the underlying raw
test data of the MMPI-2, that the ALJ had not violated the HALLEX
instructions to ALJs and that the plaintiff had not shown prejudice
resulting from the error if one had occurred.
She next believes
that the ALJ’s “conclusory statement” does not satisfy the ALJ’s
obligations under Cook and that the ALJ did not provide specific
reasons as to why the plaintiff failed to meet Listing 12.04C. The
plaintiff also objects to the finding that the bladder condition
was not severe.
She objects to the finding that the Appeals
Council did not err. Finally, she objects to the recommendation of
The defendant filed a response to the
An ALJ’s findings will be upheld if supported by substantial
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.’”
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
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)).
magistrate judge misstated the plaintiff’s argument when he found
that substantial evidence supported the ALJ’s decision not to
assign controlling weight to Dr. Joseph’s opinion.
states that she did not assert that controlling weight should be
afforded to Dr. Joseph’s opinion.
Instead, she contends that the
ALJ did not provide legally sufficient reasons for the lack of
weight afforded the Joseph opinion and assessment in view of the
Commissioner’s specific regulation regarding the factors to be
utilized in assigning weight to medical opinions.
therefore, argues that the ALJ’s legal duty of explanation was not
satisfied when he relied on the opinion of two state agency
psychologists rather than the opinion of Dr. Joseph.
The Fourth Circuit has established a five part analysis for
relationship between the physician and the applicant, (3) the
supportability of the physician’s opinion; (4) the consistency of
the opinion with the record, and (5) whether the physician is a
specialist.” Hines v. Barnhart, 453 F.3d 559, 563 (4th Cir. 2006);
20 C.F.R. § 404.1527(d).
Here, the ALJ followed the correct procedure in making the
determination to afford little weight to Dr. Joseph’s opinion.
First, it is undisputed that the ALJ acknowledged that Joseph
examined the plaintiff.
Second, the ALJ did note the treatment
The ALJ stated that Joseph saw the plaintiff for a
one-time psychological consultative evaluation after her insured
Third, the ALJ stated that Joseph’s opinion was
not supported by objective evidence.
The ALJ found that Joseph’s
assessment was based primarily upon the plaintiff’s exaggerated
subjective complaints and not upon objective evidence including her
own mental status evaluation and the assessment of the only
examining mental health specialist who examined the plaintiff for
actual mental health treatment and not to support her disability
Fourth, the ALJ stated that the medical opinions were not
consistent with other opinions. As mentioned, Dr. Joseph’s opinion
was inconsistent with Dr. Sullivan’s, the only examining mental
health specialist who examined the claimant for actual mental
The plaintiff’s primary care physician reported
In addition, the ALJ afforded great weight to the
opinions of the state agency reviewing psychologists because the
ALJ found those opinions well reasoned and supported by the medical
evidence of record.
The plaintiff argues that the ALJ cannot
solely rely on the non-examining state psychologists.
opinion shows that he relied on the record and Dr. Sullivan’s
Fifth, the ALJ does not dispute that Joseph is a
In examining the record in its entirety, the ALJ had
the opinion of more physicians than just Dr. Joseph, who examined
the plaintiff on one occasion at the suggestion of her counsel.
The ALJ, in weighing the evidence, could find that the state
psychologists’ assessments of the plaintiff were more credible than
Dr. Joseph’s opinion.
It is for the ALJ, not this Court, to weigh
the evidence of record.
Smith v. Chater, 99 F.3d 635, 638 (4th
This Court finds that the ALJ performed the analysis
required by Hines before rendering his decision and relied upon the
correct factors in making his decision, which is supported by
The plaintiff next contends that the magistrate judge erred in
finding that the ALJ was not required to call a medical expert to
determine that the plaintiff’s MMPI-2 results were invalid.
Court agrees with the magistrate judge that the ALJ was not
required to call a medical expert to determine that the plaintiff’s
MMPI-2 results were invalid because he did not request or interpret
the underlying “raw” test data.
The Hearings, Appeals, and
Litigation Law Manual1 (“HALLEX“) I-2-5-34 requires an ALJ to
consult a medical expert’s opinion to evaluate and interpret
interpret background medical test data in this case.
ALJ simply restated Dr. Joseph’s finding that the MMPI testing was
not valid due to the validity scales.
In addition, the magistrate
judge is correct that, even if there was error, the plaintiff has
failed to demonstrate prejudice constituting reversible error
because the ALJ did not discount the opinion of Joseph solely on
the basis of the invalid MMPI-2 scores.
The plaintiff’s third objection is that the magistrate judge
should not have found that the ALJ provided sufficiently specific
“HALLEX is a manual in which ‘the Associate Commissioner of
Hearings and Appeals conveys guiding principles, procedural
guidance and information to the Office of Hearings and Appeals
(OHA) staff. HALLEX includes policy statements resulting from an
Appeals Council en banc meeting under the authority of the Appeals
Council Chair. It also defines procedures for carrying out policy
and provides guidance for processing and adjudicating claims at the
Hearing, Appeals Council and Civil Actions levels.’” Melvin v.
Astrue, 602 F. Supp. 2d 694, 699-700 (E.D.N.C. 2009) (quoting Soc.
Sec. Admin., Office of Hearings and Appeals, Hearing, Appeals and
Litigation Law Manual I-1-0-1 (June 21, 2005).
reasons in the decision as to why the plaintiff failed to meet
Listing 12.04C by incorporating the prior decision into his opinion
and weighing the impact of new evidence on that decision.
plaintiff states that the ALJ did not satisfy his obligation to
compare and evaluate the medical evidence which had accumulated in
the year and a half subsequent to the earlier ALJ opinion and the
evidence which accumulated after the last insured date. This Court
does not agree with the plaintiff that the ALJ failed to satisfy
It is true that an ALJ must identify the relevant
listings and then compare each of the listed criteria to the
Cook, 783 F.2d at 1173.
judge correctly stated that the ALJ fulfills this duty when he
provides findings and determinations sufficiently articulated to
permit meaningful judiciary review. DeLoatche v. Heckler, 715 F.2d
148, 150 (4th Cir. 1983).
In this case, the ALJ incorporated the
disability determination, which included specific findings on
Listing 12.04C. The ALJ stated that the medical evidence of record
did not show any significant deterioration in the plaintiff’s
functioning since the prior decision.
this is a conclusory statement.
The plaintiff contends that
However, the ALJ’s finding is
supported by the weight he gave to the opinions of the state
magistrate judge that the ALJ properly explained the reasoning
behind why the plaintiff failed to meet Listing 12.04C.
The plaintiff objects to the magistrate judge’s finding that
substantial evidence supports the ALJ’s determination that the
plaintiff’s bladder condition was not severe.
To be considered
severe, an impairment must significantly limit the physical or
The plaintiff contends that her bladder condition
She states that she has to catheterize four times per
day and that the time consuming process interferes with her ability
to perform basic work functions.
This Court agrees with the
magistrate judge that substantial evidence in the record in this
assertions of the plaintiff. Both the ALJ and the magistrate judge
supported their position by pointing to specific evidence in the
The ALJ also found the plaintiff not to be credible.
plaintiff contends that the inability to urinate and a requirement
However, the medical evidence in the record, as
discussed by both the ALJ and the magistrate judge show that the
catheters were prescribed for intermittent use and there is no
indication in the medical records that the plaintiff was instructed
by a physician to catheterize four times a day, or even regularly.
The plaintiff also had the option to receive a bladder implant,
which would have alleviated the condition, but instead chose not to
In addition, medical records show that the
majority of the catheterization would not interfere with work
duties as her bladder problem primarily occurs prior to her
Evidence also shows that the plaintiff performed a wide
range of daily activities during the period in which she complained
The magistrate judge is correct that the ALJ
reasonably determined that the plaintiff’s bladder condition would
activities for twelve consecutive months.
Accordingly, this Court
finds that the plaintiff’s bladder condition was not severe.
The plaintiff next objects to the magistrate judge’s finding
that the Appeals Council correctly determined that the medical
evidence submitted regarding the use of a catheter was not new and
Pursuant to 20 C.F.R. § 404.970(b), the
Appeals Council shall consider evidence submitted with a request
for review if the evidence is new, material, and relates to the
period on or before the dates of the ALJ’s decision.
material if there is a reasonable possibility that the new evidence
would have changed the outcome.
and Human Serv.,
Wilkins v. Sec’y, Dep’t of Health
953 F.2d 93, 96 (4th Cir. 1991).
Evidence is not
“new” if other evidence specifically addresses the issue.
In this case, the Appeals Council considered the additional
evidence provided by the plaintiff and determined that it did not
provide a basis for changing the ALJ’s decision.
This Court has
reviewed the additional evidence provided by the plaintiff and
agrees with the magistrate judge that it is not new and material
for the same reasons: (1) there are ample treatment records on the
record and the plaintiff has made statements as to her symptoms and
the treatments received from Dr. Martinez and Dr. Demby; (2) the
plaintiff testified at the hearing concerning her bladder condition
diagnoses and recommendations that are much less severe than those
Accordingly, this Court finds that the Appeals Council did not err
in determining that the additional evidence did not provide a basis
for changing the ALJ’s decision.
supported the Commissioner’s decision and that the magistrate judge
was erroneous in stating that the plaintiff was claiming Social
Security Income when she was only claiming DIB.
magistrate judge did not commit reversible error in stating on page
40 of his report and recommendation that the plaintiff applied for
Supplemental Security Income rather than DIB.
In discussing the
procedural history of the case and the current application, the
magistrate judge correctly stated that the plaintiff was seeking
Thus, it appears that the magistrate judge incorrectly
“Disability Insurance Benefits.”
This Court will not decline to
adopt and affirm a report and recommendation because of one
Secondly, for all of the reasons stated
above, this Court finds that the ALJ’s opinion was supported by
It is the duty of the ALJ, not this Court to
weigh the evidence in the record.
See Smith, 99 F.3d at 638 (“The
duty to resolve conflicts in the evidence rests with the ALJ, not
with a reviewing court.”).
This Court has reviewed the record, as well as the parties’
motions for summary judgment, and after a de novo review, concurs
with the magistrate judge that the Commissioner’s decision that the
plaintiff was not disabled is supported by substantial evidence.
Accordingly, the magistrate judge’s report and recommendation is
affirmed and adopted in its entirety.
Based upon a de novo review, this Court hereby AFFIRMS and
ADOPTS the magistrate judge’s report and recommendation in its
Thus, for the reasons stated above, the defendant’s
motion for summary judgment is GRANTED, the plaintiff’s motion for
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 order to
counsel of record herein. Pursuant to Federal Rule of Civil
Procedure 58, the Clerk is directed to enter judgment on this
May 20, 2011
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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