Kelley v. Commissioner Of Social Security Administration
Filing
19
MEMORANDUM OPINION AND ORDER Affirming and Adopting 17 REPORT AND RECOMMENDATIONS re 12 MOTION for Summary Judgment filed by Donald Richard Henry Kelley, II, and 15 MOTION for Summary Judgment filed by Commissioner: Granting in part and Denying in part 12 Plaintiff's Motion for Summary Judgment; Granting in part and Denying in part 15 Defendant's Motion for Summary Judgment; Remanding to Administrative Law Judge for further proceedings; and Dismissing and Striking case from the active docket of this Court. Clerk directed to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 6/20/12. (soa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DONALD RICHARD HENRY KELLEY, II,
Plaintiff,
v.
Civil Action No. 5:11CV73
(STAMP)
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.
Procedural History
The plaintiff in this civil action filed claims for Disability
Insurance Benefits (“DIB”) under Title II of the Social Security
Act and for Supplemental Security Income (“SSI”) under Title XVI,
claiming that he suffered from disability beginning July 2, 2006.
Both claims were denied both initially and upon reconsideration.
The plaintiff then requested a hearing, which was granted and held
before Administrative Law Judge (“ALJ”) Drew A. Swank.
At this
hearing,
Shirley
the
plaintiff
Shears, a paralegal.
called to testify.
testified
and
was
represented
However, no vocational expert was present or
The ALJ affirmed the denial of the plaintiff’s
application for benefits on the grounds that the plaintiff was not
disabled as that term is defined by the Social Security Act.
Appeals Council denied review, and the
The
ALJ’s decision became the
final
decision
of
the
Commissioner
of
Social
Security
(“Commissioner”).
The plaintiff then filed this action against the Commissioner
seeking review of the final decision the ALJ.
Both the plaintiff
and the defendant filed motions for summary judgment.
Magistrate
Judge David J. Joel reviewed the plaintiff’s complaint, the motions
by the parties and the administrative record, and issued a report
and recommendation recommending that the defendant’s motion for
summary judgment be granted in part, that the plaintiff’s motion
for summary judgment be granted in part, and that the matter be
remanded to the ALJ to either clarify his decision with further
facts as to work amenable to the plaintiff’s limitations and
available in the national economy, or to hold a hearing with a
vocational
expert
testifying.
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
did
not
object
to
the
magistrate
judge’s
opinions that the defendant’s motion for summary judgment be
granted in part, but the defendant filed objections as to the
magistrate judge’s recommendation that the case be remanded for the
ALJ to clarify his findings regarding the plaintiff’s ability to
perform some work available in the national economy.
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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
recommendation to which objection is timely made.
judge’s
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.
Because the defendant filed an
objection to the magistrate judge’s finding the ALJ did not
properly support his findings with regard to work available to the
plaintiff, this Court will undertake a de novo review as to that
portion of the report and recommendation.
This Court will review
the other findings of the magistrate judge for clear error.
III.
Discussion
The plaintiff contends that the decision denying his claims
should be overturned because: (1) the ALJ gave the opinions of
various physicians improper weight and should have given the
opinion of the plaintiff’s treating physicians controlling weight;
(2) the ALJ failed to adequately consider the effects of the
medication used to treat the plaintiff’s HIV and; (3) the ALJ did
not call a vocational expert to testify at the hearing.
The
magistrate judge’s report and recommendation addresses all three of
these contentions.
The magistrate judge reviewed the findings of the ALJ to
determine whether they were “supported by substantial evidence and
3
whether the correct law was applied,” or whether such evidence
existed in the record to support the findings so as to allow a
reasonable person to conclude similarly.
F.2d 1453, 1456 (4th Cir. 1990).
Hays v. Sullivan, 907
After reviewing the standard for
disability and the five-step evaluation process for determining if
a claimant is disabled, the magistrate judge set forth the findings
of the ALJ. See 42 U.S.C. § 423(d)(2)(A) (defining disability); 20
C.F.R. § 404.1520 (explaining the five-step sequential evaluation
process).
Magistrate
Judge
Joel
first
found
that
the
plaintiff’s
contention that the DDS medical consultants’ opinions were given
too much weight was without merit.
The magistrate judge noted
that, even though the ALJ ultimately reached the same decision as
the
DDS
medical
consultants,
he
reached
that
conclusion
independently, and even stated in his opinion that he gave the DDS
medical consultant opinions very little weight.
Further, the
magistrate judge found that the plaintiff’s own complaints and the
opinions of his treating physicians were given a great deal of
weight, and the ALJ also had found that the plaintiff’s treating
physicians’ opinions were largely consistent with medical evidence.
The magistrate judge then concluded that the plaintiff’s
assignment of error really went to the opinion of one treating
doctor, Dr. Owunna, whose opinion that the plaintiff was unable to
work was not given controlling weight in the ALJ’s conclusions.
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However, the magistrate judge found that this opinion was not
entitled to controlling weight because the decision of whether or
not the plaintiff was able to work in any capacity was one for the
ALJ alone to make.
See SSR 96-5p (July 2, 1996)(“treating source
opinions on issues that are reserved to the Commissioner are never
entitled to controlling weight or special significance”). Further,
the magistrate judge noted that the ALJ addressed Dr. Owunna’s
opinion, and found it to be inconsistent with the medical evidence
before him.
Accordingly, the magistrate judge found no error in
the weight given to any of the medical opinions with which he was
presented.
This Court agrees with the magistrate judge and finds
no clear error in his assessment.
As to the plaintiff’s second assignment of error, Magistrate
Judge Joel concluded that the ALJ properly evaluated the effects of
the plaintiff’s HIV medication. Initially, he pointed out that the
plaintiff did not begin taking HIV medication until October 2007,
more than one year after his alleged disability onset date.
Further, the magistrate judge took note of the plaintiff’s own
testimony at the hearing before the ALJ that he did not suffer from
side effects from any of the medication that he takes.
Finally,
the plaintiff’s treating physician Dr. Owunna noted that the
plaintiff had no side effects from his HIV medication.
Based upon
these facts, all of which exist in the record, this Court finds no
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clear
error
in
the
magistrate
judge’s
assessment
as
to
the
plaintiff’s second contention.
With regard to the third assignment of error, the magistrate
judge
found
that
the
ALJ’s
opinion
as
to
step
five
of
the
evaluation process, whether the plaintiff’s “can make an adjustment
to other work,” was not supported by fact.
The ALJ’s findings
were as follows: the plaintiff suffers from both exertional and
nonexertional limitations. His exertional limitations allow him to
perform light duty work, but due to his nonexertional limitations
dealing with person-to-person interaction, he could not return to
his previous work as a fast food worker.
However, the ALJ found in
his step five analysis that the plaintiff could perform various
types of light duty positions and that a number of acceptable
positions existed in the national economy.
Accordingly, the ALJ
determined that the plaintiff was not disabled.
In
finding
the
ALJ’s
conclusions
here
to
be
in
error,
Magistrate Judge Joel states that, at step five, once it is
concluded that the plaintiff does not have listed impairments but
cannot perform past work, it is the burden of the Commissioner to
show
that
the
plaintiff
§§ 404.1520, 416.920.
can
perform
other
work.
20
C.F.R.
When the plaintiff’s exertional limitations
fall within the categories of the Medical-Vocational Guidelines
(“Grids”) and no nonexertional limitations exist to place further
restrictions on the type of work in which the plaintiff could
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engage, the Commissioner meets his burden simply using the Grids.
Gory v. Schweiker, 712 F.2d 929, 930 (4th Cir. 1983).
However,
when the plaintiff suffers from limitations outside of those
contemplated by the Grids, as the ALJ concluded is the case here,
the Grids do not apply and a vocational expert must testify in
order for the Commissioner to carry his burden.
Heckler, 765 F.2d 424, 426 (4th Cir. 1985).
Hammond v.
An exception to this
rule exists when the ALJ can determine from the record evidence
that the nonexertional, non-Grid restrictions will not erode the
occupational base considered by the Grid.
416.920.
20 C.F.R. §§ 404.1520,
In such a situation, the ALJ may apply the Grid rules.
Id.
The magistrate judge found that, while the ALJ concluded that
the plaintiff’s nonexertional limitations did not erode his ability
to perform light unskilled work to the extent that he could not be
assessed within the Grid, the ALJ provided insufficient detail
regarding the plaintiff’s nonexertional limitations to support a
finding on review that this conclusion was based upon substantial
evidence.
Further, Magistrate Judge Joel asserts, the ALJ’s
conclusion that the plaintiff cannot return to fast food work due
to his nonexertional limitations weakens the conclusion that these
limitations do not erode his ability to perform unskilled light
duty work, because fast food work constitutes such a position.
Therefore,
the
magistrate
judge
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determined
that
there
was
insufficient evidence to support the ALJ’s application of the Grid
rules.
Further, the magistrate judge noted that the ALJ simply
stated that appropriate jobs existed for the plaintiff in the
national economy, but did not support this statement with any
examples
of
such
jobs.
Accordingly,
Magistrate
Judge
Joel
recommended that this case be remanded to the ALJ to allow him to
either clarify the factual basis for his conclusion that the Grid
rules apply, or to hear testimony of a vocational expert.
In objection to this assessment of error, the defendant argues
that
the
ALJ’s
conclusion
that
the
plaintiff’s
nonexertional
limitations did not significantly effect his occupational base of
unskilled light duty work was supported by substantial evidence,
and because the Grid rules apply, the ALJ was not required to list
appropriate jobs in support of his conclusion that such jobs exist.
The defendant argues that, while it is true that the Grid rules
primarily reflect exertional limitations, not all nonexertional
limitations render a plaintiff unable to perform work within the
Grid rules.
nonexertional
The defendant further argues that the plaintiff’s
limitations,
which
require
that
he
have
little
interaction with people, “match the limitations contemplated by the
grid rules” because most unskilled light duty work involves working
with objects rather than people, and “[r]esponding appropriately to
the public is not considered one of the basic mental demands
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necessary to perform competitive unskilled work on a sustained
basis.”
(ECF No. 18 *6.)
After a de novo review, this Court agrees with the magistrate
judge and overrules the objections of the defendant as to the
plaintiff’s
third
assignment
of
error.
A
review
of
the
administrative record along with the opinion of the ALJ, reveals
that the magistrate judge was correct in his conclusion that the
ALJ failed to adequately support his finding that the plaintiff’s
nonexertional
limitations
do
not
significantly
affect
his
occupational base. While the defendant’s objections properly state
that not all nonexertional limitations significantly affect a
claimant’s occupational baseline to the extent that the Grid rules
no
longer
apply,
the
defendant’s
contentions
regarding
this
plaintiff’s specific limitations’ effect on his occupational base
are similarly unsupported.
The defendant maintains that the plaintiff’s limitations with
regard to social interaction do not significantly impair his
ability to perform unskilled light duty work because this work does
not ordinarily require human interaction.
However, the defendant
does not support this assertion with any examples or facts which
would suggest how this shows that this plaintiff’s nonexertional
limitations do not “significantly” effect his ability to perform
the work within the Grid rules. Simply because unskilled work does
not
“ordinarily”
require
social
9
interaction
cannot
serve
as
substantial evidence that this particular claimant’s limitations
with regard to social interaction will not substantially effect his
ability to perform unskilled light duty work within the Grid rules.
The
defendant
further
argues
that
basic
mental
demands
necessary to perform unskilled work do not include “responding
appropriately to the public.”
defendant
again
does
not
(ECF No. 18 *6.)
explain
whether
this
However, the
in
itself
is
sufficient to show that this plaintiff’s particular limitations
regarding
social
interaction
do
not
constitute
impairment in his ability to perform such work.
a
significant
Further, the
defendant neglects to note that SSR 85-15, his cited source for the
“basic mental demands of competitive, renumerative unskilled work”
lists the ability to “respond appropriately to supervision and
coworkers” as a basic mental demand of unskilled light duty work
and considers “a substantial loss of ability to meet any of these
basic work-related activities” to constitute a severe limitation on
the occupational base.
Id.
Finally, the defendant’s objections argue that the magistrate
judge inappropriately relies upon Hammond v. Heckler, 765 F.2d 424,
426 (4th Cir. 1985), and Loudermilk v. Astrue, No. 1:07CV141, 2009
U.S. Dist. LEXIS 73189 (N.D. W. Va. Aug. 18, 2009), to support his
conclusion that the ALJ did not properly support his reliance upon
the Grid rules in this case. The defendant contends that these two
cases are factually distinguishable from the instant case because
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the nonexertional limitations of the claimants in each of those
cases were quite different from those of this plaintiff.
However,
this Court believes that the defendant has mischaracterized the
magistrate judge’s use of these cases. Magistrate Judge Joel cited
to these cases only for their statements regarding the law that,
when nonexertional limitations exist in conjunction with exertional
limitations, an ALJ must conclude that the claimant is able to
perform the demands of “a certain level of work” despite his
additional limitations before that ALJ may apply the Grids to that
claimant.
Id.
The magistrate judge did not rely upon the facts of
either of those cases as evidence that this plaintiff is unable to
perform the required work of an unskilled light duty job within the
Grid rules, nor did the magistrate judge make such a conclusion.
He simply found, as this Court finds as well, that the ALJ did not
properly support his conclusion that the plaintiff could perform
such work, so it could not be found on review that the conclusion
was supported by substantial evidence.
Accordingly, this Court will remand this action to the ALJ in
order to allow him to either clarify his findings as to the
plaintiff’s nonexertional limitations for the purposes of using the
Grid rules, or to hold a hearing with a vocational expert present.
This Court has reviewed the record, as well as the parties’
motions for summary judgment, the magistrate judge’s report and
recommendation and the defendant’s objections thereto, and for the
11
reasons set forth above and in the report and recommendation,
concurs with the recommendations of the magistrate judge in their
entirety.
Accordingly,
the
magistrate
judge’s
report
and
recommendation is affirmed and adopted.
IV.
Conclusion
Based upon a review for plain error, this Court AFFIRMS AND
ADOPTS the magistrate judge’s recommendation that the defendant’s
motion for summary judgment (ECF No. 15) be GRANTED and the
plaintiff’s motion for summary judgment (ECF No. 12) be DENIED as
to the plaintiff’s first two assignments of error as described
above.
the
After a de novo review, this Court also AFFIRMS and ADOPTS
magistrate
judge’s
report
and
recommendation
that
the
defendant’s motion for summary judgment (ECF No. 15) be DENIED and
the plaintiff’s motion for summary judgment (ECF No. 12) be GRANTED
as to the plaintiff’s third assignment of error.
Thus, for the
reasons stated above, this matter is REMANDED to the Administrative
Law
Judge
to
clarify
his
findings
as
to
the
plaintiff’s
nonexertional limitations for the purposes of using the Grid rules
or, alternatively, to hold a hearing with a vocational expert
present.
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
12
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
in favor of the defendant on all issues except for the application
of the Grid rules to this plaintiff, as described above.
DATED:
June 20, 2012
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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