Harsh v. Commissioner of Social Security

Filing 19

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 16 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE Denying Pla's 12 Motion for Summary Judgment ; Granting Dft's 13 Motion for Summary Judgment. Clerk is DIRECTED to enter judgment. Case is DISMISSED and STRICKEN from the active docket of this Court. Signed by Senior Judge Frederick P. Stamp, Jr on 1/25/13. (mji)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JENNIFER HARSH,
Plaintiff,
v.

Civil Action No. 5:11CV134
(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 February 7, 2008, the plaintiff in this civil action filed
an application for Disability Insurance Benefits (“DIB”) under
Title II of the Social Security Act, claiming that she suffered
from disability beginning October 2, 2005.

The plaintiff claimed

disability as a result of alopecia, psoriasis, psoratic arthritis,
plantar fascitis, venous insufficiency, asthma, a sciatic nerve
condition, hyperglycemia, endometriosis, and acid reflex.

Her

application was denied both initially and upon reconsideration. On
December 9, 2008, the plaintiff requested a hearing and such
hearing was held on March 24, 2010 before Administrative Law Judge
(“ALJ”) George A. Mills, III.

The ALJ affirmed the denial of

benefits on the grounds that the plaintiff was not disabled as that
term is defined by the Social Security Act.

The plaintiff then

requested a review by the Appeals Council but was denied.

Thereafter,

the

plaintiff

filed

this

action

against

the

Commissioner of Social Security (“Commissioner”) seeking judicial
review of the adverse decision entered against her.

The plaintiff

then filed a motion for judgment on the pleadings.

The defendant

did not respond to this motion, but the defendant did file a motion
for summary judgment.

The plaintiff then filed a response to the

defendant’s motion for summary judgment.

United States Magistrate

Judge James E. Seibert 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, that the plaintiff’s motion for
judgment on the pleadings be denied, and that this matter be
dismissed.

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.
objections

stating

that:

(1)

the

The plaintiff filed timely
magistrate

judge

failed

to

understand that multiple impairments must be evaluated throughout
the sequential step process; (2) a particularized discussion and
analysis of the multiple impairments is necessary; and (3) nonsevere impairments must be considered in the combination analysis.

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.

Because the plaintiff filed

objections, this Court will undertake a de novo review as to those
portions of the report and recommendation to which objections were
made.

This Court will review the other findings of the magistrate

judge for clear error.
III.

Discussion

In the plaintiff’s motion for judgment on the pleadings, the
plaintiff argues: (1) the Commissioner’s decision is not based on
substantial evidence as the ALJ committed reversible error in
failing to find that plaintiff’s mental impairments, obesity, and
headaches were “severe”; (2) the Commissioner’s decision is not
based on substantial evidence as the ALJ committed reversible error
in not evaluating the combination of the claimant’s impairments;
(3) the ALJ failed to consider the opinion of Harsh’s treating
rheumatologist Dr. Mary Haggerty; (4) the ALJ failed in his duty to
develop the record; (5) the Commissioner’s decision is not based on
substantial evidence as the ALJ did not adequately apply 20 C.F.R.

3

§ 404.1520a; and (6) the ALJ committed reversible error by not
adequately assessing Harsh’s credibility.
In the defendant’s motion for summary judgment, the defendant
asserts

that

the

ALJ’s

decision

is

supported

by

substantial

evidence and should therefore be affirmed. He argues that based on
the substantial evidence, the ALJ did evaluate the plaintiff’s
impairments in combination, that the ALJ was under no duty to
mention the rheumatologist’s opinion, that the ALJ did adequately
develop the record, apply 20 C.F.R. § 404.1520a, and assess the
plaintiff’s credibility.
Magistrate Judge Seibert issued a report and recommendation in
which

he

plaintiff

first
does

found
not

that

suffer

the
from

ALJ’s

determination

“severe”

mental

impairments was supported by substantial evidence.

that

or

the

physical

With regard to

the plaintiff’s mental impairment, the magistrate judge asserted
that

the

ALJ

sufficiently

considered

the

plaintiff’s

mental

impairment of depression according to 20 C.F.R. § 404.1520a, which
requires

the

Commissioner

to

rate

the

degree

functional limitations based on certain factors.

of

claimant’s

The magistrate

judge also stated that with regard to the plaintiff’s physical
impairments, the ALJ properly considered the plaintiff’s subjective
complaints of pain and other subjective symptoms, as is required.
He found that the ALJ considered the plaintiff’s daily activities,
the frequency, duration, and intensity of her pain and other

4

symptoms, her medication, and other side effects.

The plaintiff

did not file objections to this portion of the magistrate judge’s
report and recommendation.

This Court agrees with the magistrate

judge and finds no clear error in his assessment.
The magistrate judge next found that the ALJ did properly
consider all of the plaintiff’s impairments both individually and
collectively.

He said that the ALJ’s finding that work exists in

significant numbers in the national economy that the plaintiff
could perform was supported by substantial evidence in the record.
The magistrate judge asserted that the ALJ’s finding that the
claimant did not have an impairment or combination of impairments
that met or medically equaled one of the listed impairments in 20
C.F.R.

§§

404.15020(d),

404.1525,

and

404.1526

was

based

on

specific findings and methodical review.
The plaintiff filed objections to the magistrate judge’s
findings concerning whether or not the ALJ properly considered the
plaintiff’s impairments in combination.
states

that

the

magistrate

judge

failed

First, the plaintiff
to

understand

that

combination must be evaluated through the sequential analysis.
Specifically, the plaintiff asserts that there is no statement of
any kind that the ALJ considered combination at steps 4 and 5.
Steps 4 and 5 ask whether “(4) the claimant can perform her past
relevant work; and (5) [whether] the claimant can perform other

5

specified types of work.”

Johnson v. Barnhart, 434 F.3d 650, 653

n.1 (4th Cir. 2005).
The plaintiff is correct in asserting that the “ALJ is
required to assess the combined effect of a claimant’s impairments
throughout the five-step analytical process.” Fleming v. Barnhart,
284

F.

Supp.

2d

256,

270

(D.

Md.

2003)

(citing

20

C.F.R.

§ 404.1523); and Walker v. Bowen, 889 F.2d 47, 49-50 (4th Cir.
1989)).

After a de novo review of the record and the magistrate

judge’s findings, however, this Court finds that the ALJ did in
fact consider the effect that the combination of impairments would
have at steps 4 and 5.

In the ALJ’s assessment as to whether the

claimant had the residual functional capacity to perform light
work, the ALJ “considered all symptoms and the extent to which
these symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence.”
*23-24.

ECF No. 10 Ex. 2

The ALJ later went on to state in his evaluation at step

4 concerning whether the plaintiff was capable of performing past
relevant work that he compared the plaintiffs “residual functional
capacity with the physical and mental demands of this work.”
No. 10 Ex. 2 *27.

ECF

Furthermore, the ALJ also considered the

residual functional capacity when evaluating step 5, which was
whether the claimant can perform other specified types of work.
See ECF No. 10 Ex. 2 *27.

By using the plaintiff’s residual

functional capacity in evaluating both steps 4 and 5, which was

6

found based on a consideration of all of the plaintiff’s symptoms,
the ALJ did properly consider the plaintiff’s combination of
impairments in steps 4 and 5.
Second,

the

plaintiff

objects

to

the

magistrate

judge’s

findings concerning whether or not the ALJ properly considered the
plaintiff’s impairments in combination because she claims “there is
widespread authority that when a claimant has multiple impairments,
a particularized discussion and analysis is necessary.” ECF No. 17
*2. This Court believes that plaintiff is therefore asserting that
the ALJ did not partake in such a particularized discussion.
According the United States Court of Appeals for the Fourth
Circuit, “well-articulated finding[s] as to the effect of the
combination of impairments” should be made.
F.2d 1168 (4th Cir. 1986).

Cook v. Heckler, 738

After a de novo review of the record

and the magistrate judge’s findings, however, this Court finds that
the ALJ did make such findings.

The ALJ specifically stated that

“[t]he

impairments

causes

significant

ability

perform

basic

above

limitations
activities.”

combination

in

the

of

claimant’s

ECF No. 10 Ex. 2 *22.

to

work

Further, the ALJ stated that

the he found the “combination of impairments to be ‘severe’ since
they have resulted in significant limitations on the claimant’s
ability to perform basic work.”

Id. at *23.

The ALJ then proceeds

to explain why such combination of impairments do not meet or equal
the requirements of any section of the Listings.

7

Id. at *23-26.

Therefore, this Court finds that the ALJ did articulate his
findings concerning the effect of the combination of impairments,
as he found that they did effect the plaintiff’s work activities.
The plaintiff’s third objection to the magistrate judge’s
findings concerning whether or not the ALJ properly considered the
plaintiff’s impairments in combination was that the ALJ failed to
consider

the

impact

of

the

impairments

he

found

non-severe.

Plaintiff did not indicate any instance in the ALJ’s opinion where
the ALJ specifically did not consider the impact of the impairments
he found non-severe.

The ALJ specifically stated that he found

“the above combination of impairments to be ‘severe’ since they
have resulted in significant limitations on the claimant’s ability
to perform basic work activity.”

ECF No. 10 Ex. 2 *23.

In the

proceeding paragraphs, the ALJ discussed those impairments he found
severe and those he found non-severe.

Id. at 22-23.

After a de

novo review of the record and the magistrate judge’s findings
however, this Court finds that there is no basis for concluding
that the ALJ did not consider the impairment he found to be nonsevere when evaluating the combination of impairments severity.
With

regard

to

plaintiff’s

third

assignment

of

error

concerning the ALJ’s opinion, the magistrate judge found that the
ALJ did not err in declining to explicitly discuss the medical
records from Dr. Haggerty’s office.

The magistrate judge stated

that “the ALJ need not evaluate in writing every piece of testimony

8

and evidence submitted.”
(7th Cir. 1993).

Carlson v. Shalala, 999 F.2d 180, 181

As noted by the magistrate judge, the ALJ only

must assess the evidence to “assure us that the ALJ considered the
important evidence . . . [and to enable] us to trace the path of
the ALJ’s reasoning.”

Id. (quoting Stephens v. Heckler, 766 F.2d

284, 287 (7th Cir. 1985)).

The magistrate judge stated that the

ALJ did not fail to consider key evidence because Dr. Haggerty’s
assessment was essentially the same as Dr. Foy’s assessment, which
the ALJ did discuss. The plaintiff did not file objections to this
portion of the magistrate judge’s report and recommendation.

This

Court agrees with the magistrate judge and finds no clear error in
his assessment.
Next, the magistrate judge found that the ALJ did not err in
his duty to develop the record.

The plaintiff’s argument was that

because there was a lack of definite diagnosis on her mental status
examination, this gave rise to a duty to obtain a consultative
examination.

The magistrate judge noted that the ALJ does have “a

duty to explore all relevant facts and inquire into the issues
necessary for adequate development of the record, and cannot rely
on evidence submitted by the claimant when that evidence is
inadequate.” Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986).
The magistrate judge also indicated that the ALJ does have to order
a consultative exam but only when additional evidence is necessary
that is not contained in the medical records or when the evidence

9

is conflicting or insufficient. 20 C.F.R. § 404.1519(a). However,
as explained by the magistrate judge, the plaintiff “must also show
he was prejudiced by the inadequate record and that, had the ALJ
complied with the regulation, he ‘could and would have adduced
evidence that might have altered the result.’” Hyde v. Astrue, No.
07–30748, 2008 U.S. App. LEXIS 10228 at *10 (5th Cir. May 12, 2008)
(quoting Kane v. Heckler, 731 F.2d 1216, 1220 (5th Cir. 1984)).
The

magistrate

claimant’s

judge

alleged

found

mental

that

the

impairments

record
was

not

concerning
incomplete

the
or

inadequate so as to require the ALJ to further develop the record
by ordering a consultative examination.

Instead, the magistrate

judge said that based on the information in the record there was
sufficient evidence to support the ALJ’s determination.

The

plaintiff did not file objections to this portion of the magistrate
judge’s report and recommendation.

This Court agrees with the

magistrate judge and finds no clear error in his assessment.
The magistrate judge then found that the ALJ did properly
apply 20 C.F.R. § 404.1520a.

The plaintiff argued that this

section imposed a duty of explanation and the ALJ violated such
duty because he did not explain his conclusions.

The magistrate

judge noted the information that the ALJ used in making the
conclusions under 20 C.F.R. § 404.1520a concerning whether the
plaintiff’s impairments were severe.

For instance, the magistrate

judge indicated that the ALJ came to the conclusion that the

10

plaintiff’s

depression

was

not

severe

because

she

had

not

experienced episodes of extended decompensation, she only had mild
restrictions to activities of daily living, mild restrictions in
social functioning and mild restrictions in concentration.

The

magistrate judge stated that the ALJ used such evidence as the
plaintiff not having a longitudinal record of formal mental health
treatment, the treating doctor never referring her for a mental
health evaluation, and also all the various activities she was able
to complete to come to his conclusion.

The plaintiff did not file

objections to this portion of the magistrate judge’s report and
recommendation.

This Court agrees with the magistrate judge and

finds no clear error in his assessment.
Finally, the magistrate judge found that the ALJ did not make
an improper credibility determination concerning the plaintiff’s
statements regarding her pain and symptoms.

The magistrate judge

cited the Fourth Circuit’s standard for evaluating a plaintiff’s
subjective complaints from Craig v. Charter, 76 F.3d 585 (4th Cir.
1996).

As the magistrate judge indicates, while the ALJ must

consider the plaintiff’s statements, he is not required to credit
them to the extent they are inconsistent with the objective medical
evidence

or

to

the

extent

the

underlying

objective

medical

impairment could not reasonably be expected to cause the symptoms
alleged.

Craig, 76 F.3d at 595.

The magistrate judge also noted

that other factors must also be considered in determining the

11

credibility, like prior work record and efforts to work, daily
activities,

and

other

information

concerning

the

claimant’s

symptoms and how the symptoms affect the individual’s ability to
work.

The magistrate judge further noted that “[b]ecause [the ALJ

has] the opportunity to observe the demeanor and to determine the
credibility of the claimant, the ALJ’s observations concerning
these questions are to be given great weight.” Shively v. Heckler,
739F.2d

987,

989

(7th

Cir.

1984)

(citation

omitted).

The

magistrate judge stated that the ALJ did consider the plaintiff’s
symptoms, limitations, daily activities, social activities, and
side effects.

Based on these considerations, the ALJ found that

her statements regarding her symptoms were “fair, at best.”

The

magistrate judge noted that there was more than a mere scintilla of
evidence for the ALJ to discredit the plaintiff’s statements.

The

plaintiff did not file objections to this portion of the magistrate
judge’s report and recommendation.

This Court agrees with the

magistrate judge and finds no clear error in his assessment.
IV.

Conclusion

Based upon a de novo review, this Court hereby AFFIRMS and
ADOPTS the magistrate judge’s report and recommendation in its
entirety.

Thus, for the reasons stated above, the defendant’s

motion for summary judgment is GRANTED and the plaintiff’s motion
for judgment on the pleadings is DENIED.

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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:

January 25, 2013

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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