Brewer v. Commissioner of Social Security
Filing
19
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 18 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE; DENYING 14 Plaintiff's Motion for Summary Judgment; and 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 2/8/12. (cc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
RODNEY WAYNE BREWER,
Plaintiff,
v.
Civil Action No. 5:11CV106
(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
On November 27, 2007, the plaintiff, Rodney Wayne Brewer,
filed an application for Supplemental Security Income (“SSI”)
benefits
alleging
disability
since
January
1,
2007
due
to
arthritis, chronic pain, knee and arm injuries, headaches, bipolar
disorder,
anxiety,
and
sleep
disorder.
The
Social
Security
Administration denied the plaintiff’s application initially and on
reconsideration.
The plaintiff then filed another application for
benefits, alleging disability since April 20, 2009.
Again, the
Social Security Administration denied his application initially and
on reconsideration.
The plaintiff requested a hearing, and a
hearing was held on October 20, 2010 before an Administrative Law
Judge (“ALJ”).
At the hearing, the ALJ granted the plaintiff’s
request to reopen his original November 2007 application.
On January 20, 2011, the ALJ issued a decision finding that
the plaintiff was not disabled within the meaning of the Social
Security Act.
The Appeals Council denied the plaintiff’s request
for review, rendering the ALJ’s decision final.
The plaintiff now
seeks judicial review pursuant to 42 U.S.C. § 405(g) of the adverse
decision of the defendant, the Commissioner of Social Security.
The case was referred to United States Magistrate Judge James
E.
Seibert
for
recommendation
submission
for
of
proposed
disposition
findings
pursuant
of
to
fact
28
and
U.S.C.
§ 636(b)(1)(B). Both the plaintiff and the defendant filed motions
for summary judgment.
issued
a
report
and
On January 20, 2012, the magistrate judge
recommendation
recommending
that
the
defendant’s motion for summary judgment be granted and that the
plaintiff’s motion for summary judgment be denied. 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 fourteen days after being served with a copy of the report.
Neither party filed objections.
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
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magistrate judge’s findings and recommendation will be upheld
unless they are “clearly erroneous.”
See Webb v. Califano, 458 F.
Supp.
this
825
(E.D.
Cal.
1979).
In
case,
no
party
filed
objections to the report and recommendation, thus, the plaintiff
waived his right to appeal from a judgment of this Court based
thereon.
Thomas
v.
Arn,
474
U.S.
140,
148-53
(1985).
Accordingly, this Court reviews the report and recommendation of
the magistrate judge for clear error.
III.
Discussion
In his motion for summary judgment, the plaintiff alleges that
the Commissioner erred as a matter of law by finding that he is
capable of work that exists in substantial numbers in the national
economy.
According to the plaintiff, the ALJ failed to adequately
include certain limitations in the hypothetical to the vocational
expert (“VE”).
Specifically, the plaintiff challenges the ALJ’s
failure to give proper weight to his testimony and the medical
evidence regarding his use of a cane.
The plaintiff also argues
that the Commissioner erred by discounting his credibility without
providing specific reasons supported by the evidence in the case
record. The plaintiff asserts that the ALJ failed to provide
specific, cogent reasons for his unfavorable credibility assessment
of the plaintiff.
The defendant, in his motion for summary judgment, counters
that the ALJ appropriately omitted the plaintiff’s alleged use of
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a cane from the hypothetical and that the ALJ clearly explained why
he discounted the plaintiff’s credibility.
According to the
defendant, the evidence shows that the plaintiff’s cane is not
medically necessary.
Also, the defendant contends that the ALJ’s
decision demonstrates that he fully complied with SSR 96-7 by
providing
numerous
substantiated
reasons
for
his
credibility
determination.
In his report and recommendation, the magistrate judge found
that the plaintiff’s need to reply on a cane for ambulatory
assistance is not supported by substantial evidence in the record,
therefore, the ALJ did not err in failing to include it in the
hypothetical posed to the VE.
Second, the magistrate judge found
that because substantial evidence supports a finding that the
plaintiff’s subjective statements were not entirely credible, the
ALJ did not err in discounting the plaintiff’s credibility.
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.
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
4
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 properly omitted
the plaintiff’s cane from the hypothetical. Although the plaintiff
may have been prescribed a cane, this Court finds that there is
other evidence in the record indicating that a cane was not
medically required and that the plaintiff did not consistently use
a cane to walk.
Importantly, the plaintiff did not mention a need
to rely on a cane when providing a description of his daily
activities during his hearing before the ALJ.
This Court also
agrees that the plaintiff’s testimony was properly discounted by
the ALJ.
Given the inconsistencies in the record with regard to
the plaintiff’s statements about the severity of his limitations,
his
medical
history,
and
his
employment
history,
substantial
evidence supports a finding that the plaintiff’s statements were
not entirely credible.
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
ALJ
posed
a
proper
hypothetical
to
the
VE
and
properly
evaluated and stated his reasons for his credibility determination.
Accordingly, the magistrate judge’s report and recommendation is
affirmed and adopted.
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IV.
Conclusion
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
magistrate judge.
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:
February 8, 2012
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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