Ashby v. Commissioner of Social Security
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 18 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE: Denying 13 plaintiff's Motion for Summary Judgment; Granting 16 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 7/26/11. (cc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
LESLIE A. ASHBY,
Civil Action No. 5:11CV8
MICHAEL J. ASTRUE,
Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
The plaintiff, Leslie A. Ashby, filed claims for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”)
under Titles II and XVI, respectively, of the Social Security Act.
In her application, the plaintiff alleges disability beginning June
1, 2006. The Social Security Administration denied the plaintiff’s
application initially and on reconsideration.
The plaintiff then
requested a hearing, and a hearing was held on September 17, 2009,
before an administrative law judge (“ALJ”). The plaintiff, as well
as a vocational expert (“VE”), appeared at the hearing. On October
22, 2009, the ALJ issued a decision finding that the plaintiff had
not been under a disability within the meaning of the Social
Security Act since the date the application was filed. The Appeals
Council denied the plaintiff’s request for review, rendering the
ALJ’s decision final.
The case was referred to United States Magistrate Judge David
§ 636(b)(1)(B). Both the plaintiff and the defendant filed motions
for summary judgment. On July 5, 2011, the magistrate judge issued
a report and recommendation recommending that the 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 (14)
days after being served with a copy of the report.
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 to the report and recommendation, thus, the plaintiff
waived her right to appeal from a judgment of this Court based
Accordingly, this Court reviews the report and recommendation of
the magistrate judge for clear error.
In her motion for summary judgment, the plaintiff alleges that
the final decision of the defendant that she is not disabled is not
supported by substantial evidence.
In support of this motion, the
plaintiff argues: (1) the ALJ committed reversible error by giving
“great weight” to the psychiatric review technique form assessments
by non-evaluating doctors; (2) the ALJ erred in determining the
plaintiff’s residual functional capacity (“RFC”) with regard to her
right upper extremity and mental impairments; and (3) the ALJ did
not correctly assess the plaintiff’s credibility.
The defendant contends, in his motion for summary judgment,
that substantial evidence supports the Commissioner’s determination
that during the relevant period, the plaintiff did not qualify for
DIB or SIS.
Specifically, the defendant asserts: (1) substantial
evidence supports the ALJ’s RFC assessment; and (2) substantial
evidence supports the ALJ’s credibility determination.
Magistrate Judge Joel issued a report and recommendation in
which he found that the ALJ’s evaluation of the plaintiff’s mental
impairments is supported by substantial evidence. According to the
magistrate judge, Dr. Cerra is not a “treating source,” so his
opinion is not entitled to controlling weight.
Even so, the
magistrate judge found that the ALJ provided a thorough discussion
of Dr. Cerra’s findings and incorporated those findings into his
The report and recommendation also states that
the ALJ properly weighed the global assessment of functioning
(“GAF”) score reported by Dr. Cerra.
Moreover, the magistrate
judge found that the ALJ gave a proper explanation for the reasons
he assigned controlling weight to the opinions of the state agency
Next, the magistrate judge held that
substantial evidence supports the mental limitations posed to the
The magistrate judge held that substantial evidence supports
the physical limitations identified in the ALJ’s RFC and finally,
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)).
In this case, this Court agrees that the ALJ considered the
See 20 C.F.R. §§ 404.1527(d), 416.927(d).
ALJ found that Dr. Cerra’s opinion was not entitled to controlling
weight, he did incorporate Dr. Cerra’s findings into his RFC
Further, the ALJ provided a detailed discussion of
Dr. Cerra’s May 27, 2009 evaluation of the plaintiff.
fact that the GAF score assigned by Dr. Cerra was based only upon
his one-time evaluation of the plaintiff and was contradicted by
supports the weight assigned to it.
After reviewing the record,
accurately reflected the limitations found by the ALJ.
With regard to the ALJ’s RFC determination, this Court agrees
that the medical evidence, opinion evidence, and statements from
the plaintiff support the limitations found by the ALJ.
magistrate judge stated in his report and recommendation, it is not
the province of this Court to second-guess the Commissioner’s
weighing of the evidence.
Finally, in addressing the plaintiff’s
contention that the ALJ incorrectly assessed her credibility, the
magistrate judge notes that the plaintiff has failed to provide any
evidence in support of this assertion.
The ALJ, however, provided
evidence that the plaintiff exaggerated her symptoms.
This Court has reviewed the record, as well as the parties’
motions for summary judgment, and for the reasons set forth in the
report and recommendation, concurs with the magistrate judge that
the Commissioner’s decision denying the plaintiff’s application for
SSI and DIB is supported by substantial evidence. Accordingly, the
For the reasons set forth above, this Court finds that the
magistrate judge’s recommendation is not clearly erroneous and
hereby AFFIRMS and ADOPTS the report and recommendation of the
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.
July 26, 2011
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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