Yerardi v. Commissioner of Social Security
Filing
19
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE 18 ; Denying Pla's 12 Motion for Summary Judgment; Granting Dft's 16 Motion for Summary Judgment. This case is DISMISSED and STRICKEN from the docket. Clerk is DIRECTED to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 6/13/12. (mji)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DONNA YERARDI,
Plaintiff,
v.
Civil Action No. 5:11CV124
(STAMP)
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.
The
plaintiff,
Procedural History
Donna
Yerardi,
filed
an
application
for
Disability Insurance Benefits (“DIB”) alleging disability since
March 6, 2003 due to back injury, mental and emotional conditions,
depression, anxiety, and pain.
(“SSA”)
denied
reconsideration.
the
The Social Security Administration
plaintiff’s
application
initially
and
on
The plaintiff then requested a hearing, and a
hearing was held on September 24, 2008 before an Administrative Law
Judge (“ALJ”).
The ALJ ultimately issued a decision finding that
the plaintiff was not disabled within the meaning of the Social
Security Act.
The plaintiff requested review by the Appeals
Council, and on July 23, 2009, the Appeals Council vacated the
ALJ’s decision and remanded the case for further proceedings.1
1
A
As the report and recommendation explains, the Appeals
Council vacated the hearing decision and remanded the case to the
ALJ because the plaintiff had not been given the required twenty
supplemental hearing was held, and on May 26, 2010, the ALJ denied
the
plaintiff’s
requested
review
claim
by
a
second
the
Appeals
time.
Again,
Council,
rendering the ALJ’s decision final.
the
which
plaintiff
was
denied,
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
to
of
28
fact
and
U.S.C.
§ 636(b)(1)(B). Both the plaintiff and the defendant filed motions
for summary judgment. On May 25, 2012, the magistrate judge issued
a report and 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 on or before
June 8, 2012.
Neither party filed objections.
days notice before the hearing and because new and material
evidence from Dr. Alex Ambroz indicated that the plaintiff might be
more limited than found in the original hearing decision. (R. 88.)
Both of these problems were rectified at the subsequent hearing.
2
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.”
Supp. 825 (E.D. Cal. 1979).
See Webb v. Califano, 458 F.
In this case, neither party filed
objections to the report and recommendation, thus, the plaintiff
waived her 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 her motion for summary judgment, the plaintiff alleges that
the ALJ failed to properly develop the record.
Specifically, the
plaintiff argues that the ALJ failed to: (1) adequately question
her
about
her
impairments,
medical
treatment,
and
functional
restrictions; (2) order a consultative psychiatric exam; and (3)
re-contact her treating physician to obtain additional records.
The defendant, in his motion for summary judgment, argues that the
record
was
adequately
developed
and
substantially
finding that the plaintiff was not disabled.
3
supports
a
In his report and recommendation, the magistrate judge found
that the ALJ did not err by failing to adequately develop the
record.
As the magistrate judge noted, the ALJ questioned the
plaintiff about her daily living, her educational background, and
her past jobs.
(R. 38-40.)
The ALJ also questioned the plaintiff
about the medical treatment she received, what pain medications she
took, whether she experienced side effects from her medications,
what level of pain she experiences, and whether she has had outpatient treatment for her mental impairments.
(R. 40-44; 60-68.)
Finally, the ALJ also considered the numerous disability reports,
in which the plaintiff described her functional limitations.
20-24; 165-81; 194-214; 225-27.)
how
her
impairments
affect
(R.
These disability reports explain
her
functional
capacity,
and
the
magistrate judge concluded that they were appropriately reflected
in the ALJ’s Residual Functional Capacity (“RFC”) assessment.
The magistrate judge also found no merit to the plaintiff’s
contention that her second hearing was insufficient because it only
lasted
eighteen
magistrate
judge
minutes.
After
concluded
that
reviewing
there
was
the
no
record,
ambiguity
the
that
warranted a consultative psychiatric examination because there was
sufficient evidence for the ALJ to find that the plaintiff is not
disabled. Finally, the magistrate judge held that there was enough
information in the ALJ’s possession so that he did not need to seek
additional
evidence
or
clarification
4
by
re-contacting
the
plaintiff’s treating physician. Importantly, the plaintiff has not
shown what additional information could have been obtained and
what, if any, impact it would have had on the outcome of this case.
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. Mut. Mining, Inc., 80
F.3d 110, 113 (4th Cir. 1996) (quoting Consolo v. Fed. Mar. Comm’n,
383 U.S. 607, 620 (1966)).
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 did not err by failing to adequately develop the record.
This Court finds that the ALJ properly explored all relevant facts
and inquired into issues necessary to develop the record. See Cook
v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986).
Given the
substantial support for the ALJ’s RFC assessment, this Court agrees
that the plaintiff is unable to show that her case was prejudiced
by
the
alleged
lack
of
further
5
development
of
the
record.
Accordingly, the magistrate judge’s report and recommendation is
affirmed and adopted.
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.
(ECF No. 18.)
The defendant’s motion for
summary judgment (ECF No. 16) is GRANTED and the plaintiff’s motion
for summary judgment (ECF No. 12) 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:
June 13, 2012
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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