Butler v. Commissioner of Social Security

Filing 24

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 21 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE. 17 plaintiff's Motion for Summary Judgment is DENIED and 19 defendant's Motion for Summary Judgment is GRANTED. This civil action is DISMISSED and STRICKEN from the active docket of this court. Clerk is directed to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 1/29/13. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TERRI YVONNE BUTLER,
Plaintiff,
v.

Civil Action No. 5:11CV150
(STAMP)

MICHAEL J. ASTRUE, Commissioner of
the Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.

Procedural History

On February 5, 2009, the plaintiff filed an application for
disability insurance benefits (“DIB”) and supplemental security
income (“SSI”) under Title II of the Social Security Act, claiming
that she suffered from disability beginning October 15, 2008.

The

plaintiff claimed disability as a result of depression, breast
cancer, anxiety, anxiety aggression, left arm nerve damage and
pain,

and

stomach

ulcers.

Her

application

initially and upon reconsideration.

was

denied

both

On January 5, 2010, the

plaintiff requested a hearing and such hearing was held on March
22, 2011, before Administrative Law Judge (“ALJ”) Mark M. Swayze.
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.

After filing

her complaint with this Court, the plaintiff filed a motion for
summary judgment.

The defendant did not respond to this motion,

but the defendant did file a separate 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 summary judgment 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.
The plaintiff thereafter filed timely objections to the magistrate
judge’s

finding

concerning

her

argument

that

the

vocational

expert’s testimony was unreliable.
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.

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 plaintiff’s motion for summary judgment, the plaintiff
argues that there is a lack of substantial evidence to meet the
Commissioner’s burden of proving that there are jobs in significant
numbers in the national economy that the plaintiff can do given her
age, education, work experience and residual functional capacity
(“RFC”).

Specifically, the plaintiff states that the ALJ did not

present the vocational expert (“VE”) with all of the plaintiff’s
psychological limitations in his hypothetical question and as such
the VE’s testimony is not relevant to the plaintiff’s claim.
Further, the plaintiff states that the VE’s testimony is unreliable
as he incorrectly testified that his testimony was consistent with
the Dictionary of Occupational Titles (“DOT”) because he identified
jobs that required frequent reaching.
The defendant argued in his motion for summary judgment that
as an initial matter, disability pursuant to the Social Security
Act and regulations is stringent and plaintiff bears the burden of
proving not only that she has an impairment expected to result in

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death or last continuously, but also that it is so severe that it
prevents her from performing any work.

He next argued that the

plaintiff did not meet such burden, as the ALJ properly assessed
plaintiff’s RFC and concluded that she could perform a range of
unskilled light and sedentary work.
that

the

ALJ

correctly

relied

Lastly, the defendant asserts

upon

the

vocational

expert’s

testimony at step five of the sequential evaluation process.
Magistrate Judge Seibert issued a report and recommendation in
which he first found that the limitations plaintiff claims that ALJ
failed in presenting to the VE did not have to be included in the
hypothetical and, even if the ALJ should have included such
limitations, there is no evidence that the outcome would have been
different.

The limitations the plaintiff asserts should have been

included are those that were found by Dr. Capage, a West Virginia
State

agency

Specifically,

psychologist
Dr.

Capage

had

who
found

examined
that

the

the

plaintiff.

plaintiff

was

moderately limited in the areas he noted in Section I of the mental
RFC assessment.

As the magistrate judge stated, the Social

Security Administration guidelines explain that “Section I is
merely a worksheet to aid in deciding the presence and degree of
functional limitations and the adequacy of documentation does not
constitute the RFC assessment.” POMS DI 24510.060. The magistrate
judge further indicated that based on the guidelines, “Section III
--

Functional Capacity Assessment, is for recording mental RFC

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determination.

It is in this section that the actual mental RFC

assessment is recorded, explaining the conclusions indicated in
Section I.”

Id.

Based on these guidelines and case law, the

magistrate judge concluded that the limitations indicated by Dr.
Capage in Section I do not constitute plaintiff’s actual RFC, and
therefore they did not have to be included in the hypothetical to
the VE.

Finally, the magistrate judge indicated that a moderate

limitation

in

a

functional

area

indicates

2d

609,

615

§ 4041520a(c)(4).

(E.D.

Tex.

but

not

White v. Barnhart, 454 F.

presumptively disabling impairment.
Supp.

severe

2006);

see

also

20

C.F.R.

Therefore, the magistrate judge asserts that

even if the ALJ had included the moderate limitations in his
hypothetical, there is no evidence that the outcome would have been
different.

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.
Magistrate

Judge

Seibert

next

found

that

there

is

no

inconsistency between the VE’s opinion and the DOT descriptions of
the jobs and as such, the VE’s testimony was not unreliable.

The

plaintiff initially stated in her motion for summary judgment that
the ALJ had not specifically questioned the VE as to whether his
testimony was consistent with the companion publication to the DOT,
the

Selected

Characteristics

of

5

Occupations

listed

in

the

Dictionary of Occupational Titles (“SCO”).

The plaintiff argued

that the VE’s testimony is required to be consistent with both the
DOT and SCO.

As an initial matter, the magistrate judge indicates

that the DOT and SCO are not in conflict in this situation as both
state that the occupations at issue require frequent reaching. The
magistrate judge then asserted that while the ALJ did indicate that
the plaintiff had a limitation regarding occasional reaching with
the left arm, no such restrictions were identified with respect to
the use of the right arm.

He noted that nothing in the DOT

expressly states that the jobs identified by the VE require
frequent reaching with both arms, and the testimony of the VE also
did not give any indication that any of the occupations required
frequent reaching with both hands. Therefore, the magistrate judge
concluded that there was no inconsistency between the VE’s opinion
and the DOT descriptions of the jobs.
The plaintiff filed objections to this finding.
objections,

the

plaintiff

argues

that

the

magistrate

In her
judge

improperly invaded the province of the ALJ as the finder of fact
because there was no testimony to support the magistrate judge’s
conclusion that none of the jobs identified required frequent
reaching with both hands.

Plaintiff suggests that it is at least

likely that the ALJ would not have accepted the vocational expert’s
testimony if he knew that the DOT described these jobs as requiring
frequent reaching.

Further, she states that the ALJ’s finding at

6

least raises the possibility that he would have concluded that jobs
that all required at least frequent reaching would not be available
to the plaintiff given her inability to fully use her dominant left
arm.
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 after a de novo review, concurs
with the magistrate judge that the ALJ’s finding concerning there
being jobs in significant numbers that the plaintiff can perform,
as

such

findings

are

supported

by

substantial

evidence.

Specifically, this Court finds that there is no inconsistency
between the VE’s opinion and the DOT descriptions of the jobs, as
the plaintiff claims there is.

The VE took into account the

plaintiff’s limitation with her left arm as evidenced by the

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transcript of the hearing.

ECF No. 15 Ex. 2 *77-78.

While some of

the jobs that the VE identified as those that the plaintiff could
perform are listed as requiring frequent reaching, there is nothing
in the SCO that indicates that the jobs require frequent reaching
with both arms.

Therefore, there is no conflict between the VE’s

testimony and DOT.

Diehl v. Barnhart, 357 F. Supp. 2d 804, 822

(finding no conflict between the VE evidence and the DOT when
plaintiff had limitation in right hand but not left hand and some
jobs required frequent reaching).

As such, the VE’s testimony

provided substantial evidence for the ALJ’s finding that there were
jobs that exist in significant numbers in the national economy that
the plaintiff could perform.
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 be GRANTED and the plaintiff’s motion
for

summary

judgment

be

DENIED

as

to

assignment of error as described above.

the

plaintiff’s

first

After a de novo review,

this Court also AFFIRMS and ADOPTS the magistrate judge’s report
and recommendation that the defendant’s motion for summary judgment
be GRANTED and the plaintiff’s motion for summary judgment be
DENIED as to the plaintiff’s second assignment of error. Thus, for
the reasons stated above, the defendant’s motion for summary
judgment (ECF No. 19) is GRANTED and the plaintiff’s motion for

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summary judgment (ECF No. 17) 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:

January 29, 2013

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

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