Farley v. Commissioner of Social Security

Filing 22

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPYTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE: Denying 10 Plaintiff's Motion for Summary Judgment; Granting 14 Defendant's Motion for Summary Judgment; and Affirming and Adopting 17 Report and Recommendations. The decision of the Commissioner is Affirmed; case to be Dismissed with Prejudice and Stricken from active docket of this Court. Clerk directed to enter judgment pursuant to FRCP 58. Signed by Senior Judge Frederick P. Stamp, Jr on 1/15/13. (soa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TINA L. FARLEY,
Plaintiff,
v.

Civil Action No. 5:12CV29
(STAMP)

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

Background

On January 14, 2009, 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 November 1, 2008. She claimed disability
as a result of diabetes, carpal tunnel syndrome, bulging discs in
the neck, headaches, a herniated disc, trigger finger and thumb,
tennis elbow on the right side, and a cataract in one eye.
application

for

benefits

was

denied

both

initially

and

Her
upon

reconsideration. The plaintiff then requested a hearing, which was
granted and held before Administrative Law Judge (“ALJ”) Charlie
Paul Andrus.

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.

The

plaintiff then requested and was granted review by the Appeals

Council on the grounds that the ALJ incorrectly found that the
plaintiff’s date last insured was December 31, 2010, when the
proper date last insured was December 31, 2011.
2012,

the

Appeals

Council

made

findings

about

On January 9,
the

evidence

submitted with regard to the one-year period between the ALJ’s
improperly determined date last insured and the actual date last
insured (“unadjudicated period”).

It then adopted the ALJ’s

adverse findings, modifying them to reflect the altered date last
insured.

This

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 of the Appeals Council.

Both

parties filed motions for summary judgment, and both motions are
now fully briefed. 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.

2

The plaintiff filed timely objections which object to all of the
findings of Magistrate Judge Seibert.
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 has

objected to the entire report and recommendation, this Court will
undertake a de novo review of all of the magistrate judge’s
findings recommendations therein.
III.
The

plaintiff

asserts

Discussion
that

the

Appeals

Council

and

Commissioner erred by: (1) denying her claim with regard to the
unadjudicated period without providing her with an opportunity for
a hearing–in violation of her Fifth Amendment right to due process;
(2) providing a grossly insufficient opinion as to her status
during

the

unadjudicated

period;

(3)

exercising

insufficient

consideration of the opinion of her treating source; (4) improperly
rejecting two of her severe impairments; and (5) making an improper
credibility

determination.

The

defendant

asserts

that

all

determinations of the Commissioner were supported by substantial
evidence, and that the Appeals Council properly considered the

3

unadjudicated period without additional hearing.

After a full de

novo review and for the reasons that follow, this Court will adopt
and affirm the magistrate judge’s report and recommendation in its
entirety.
A.

Appeals Council’s failure to grant plaintiff an additional

hearing on the unadjudicated period
The plaintiff asserts that her Fifth Amendment right to due
process was violated by the Appeals Council’s failure to grant her
the opportunity to present evidence from the unadjudicated period
in a hearing after the council determined that the ALJ erred in his
determination of the plaintiff’s last date insured.

As the

magistrate judge explained, the plaintiff possesses a property
interest in disability benefits which is protected by the Fifth
Amendment.

Accordingly, pursuant to the Fifth Amendment right to

due process, she must be afforded notice and an opportunity to be
heard before she may be denied those benefits.

See Richardson v.

Perales, 402 U.S. 389, 401-02 (1971); and see Mullane v. Cent.
Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950).
of

social

security

disability

claims,

due

In the context

process

requires

proceedings be “full and fair” and include: (1) consideration of
the private interest that will be affected by official action; (2)
the risk of erroneous deprivation through the procedures used and
the probative value, if any, of additional or substitute procedural
safeguards;

and

(3)

the

government’s

4

interest,

including

the

function involved and the fiscal and administrative burdens that
the additional or substitute procedural requirement would entail.
Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

Magistrate Judge

Seibert considered whether the plaintiff was afforded such a
constitutionally valid procedure before the Appeals Council.
First, the magistrate found, and this Court agrees, that the
personal interest at stake in this situation is great.

However,

the plaintiff was provided with sufficient opportunity to present
all evidence with regard to the unadjudicated period.

When the

Appeals

improper

Council

found

that

the

ALJ

had

reached

an

conclusion as to the last date insured, it sent a letter to the
plaintiff which indicated that she could “send more evidence or a
statement about the facts and law in your case,” and that she could
also request an appearance before the Appeals Council.

The

plaintiff did send more evidence, but as the magistrate judge
points out, there is no evidence that she asked for an appearance.
Accordingly, the risk of erroneous deprivation resulting from the
procedures used is low.
The plaintiff argues that the fact that she was afforded an
opportunity to appear before the Appeals Council and chose not to
is not “relevant to the issue at hand” because an appearance before
the Appeals Council is not equivalent to an ALJ evidentiary
hearing.

This argument misconstrues the requirements of due

process.

Due process in any context does not require any specific

5

type of hearing or proceeding prior to a deprivation of a right,
but instead only requires notice and an opportunity to be heard.
As noted above, in the social security context, it requires that
proceedings be “full and fair.”

As long as these requirements are

met, the claimant has been afforded her due process rights.
This Court finds that the opportunity to present evidence with
regard to the unadjudicated period, as well as the opportunity to
both present a written narrative of her argument and to come before
the Appeals Council to present evidence and argument in favor of a
finding of disability is both “full and fair.” This procedure also
affords the plaintiff notice, and an opportunity to be heard prior
to the issuance of an adverse decision.

See Ferriell v. Astrue,

614 F.3d 611, 620-22 (6th Cir. 2010); Ingram v. Comm’r of SSA, 496
F.3d 1253 (11th Cir. 2007) (noting with approval, the Appeals
Council’s consideration of new evidence submitted at the appellate
level without remand or new hearing); Davenport v. Astrue, 417 F.
App’x 544, 552 (7th Cir. 2011) (unpublished) (A Social Security
disability claimant’s due process rights are violated if the
claimant “is not offered a chance to present evidence . . . .”
(emphasis added)).
The United States Court of Appeals for the Sixth Circuit’s
opinion in Ferriell, while not binding precedent upon this Court,
is particularly instructive in this inquiry, as the facts of that

6

case are quite similar to the facts in this case.1

In Ferriell,

the plaintiff’s application for DIB was granted by an ALJ on the
basis of the ALJ’s determination that the plaintiff’s date last
insured was December 31, 2005.

However, a number of months after

the ALJ’s favorable decision, the Appeals Council determined that
the ALJ had erred in his determination of the plaintiff’s date last
insured, and reopened the plaintiff’s application. At its decision
to reopen his case, the Appeals Council informed the plaintiff of
the same, and also notified him of his right “to present a
statement of the law and facts of his case, new evidence, and/or a
request to appear before the Appeals Council prior to the entry of
its final decision.”

614 F.3d at 613.

Mr. Ferriell’s attorney sent a letter arguing for the date
last insured as determined by the ALJ.

The Appeals Council then

entered an unfavorable opinion wherein it reversed the ALJ’s
determination of the plaintiff’s date last insured, finding it to
be

instead

December

31,

2003,

and

1

as

there

was

no

evidence

The plaintiff urges this Court to not consider Ferriell in
its determinations of the constitutionality of the procedures used
in this plaintiff’s case because the Ferriell opinion was decided
in the context of a reopening procedure rather than an appeal by
the claimant. This Court notes this factual divergence, but finds
it to be a distinction without a difference with regard to the due
process considerations made by the Court in that case. Following
the decision to reopen the claimant’s case in Ferriell, the letter
sent to the claimant, as well as the options offered to him to
present evidence and argument before it regarding its decision as
to his disability during the unadjudicated period between 2003 and
2005, was largely identical to that utilized by the Appeals Council
here.
7

presented as to disability prior to 2005, found the plaintiff
ineligible for disability benefits.

Id.

Mr. Ferriell filed suit,

and argued, as did the plaintiff here, that the process by which
the Appeals Council’s reached its decision–namely that it reached
this

decision

without

granting

him

a

second

evidentiary

hearing–violated the plaintiff’s Fifth Amendment right to due
process.
In that case, the Sixth Circuit reviewed the Eldridge factors
set forth above and found that the procedure used by the Appeals
Council in overturning the ALJ’s determination as to the date last
insured gave the plaintiff “the chance to assert his argument.”
Id. at 620.

Further, the court concluded that the letter sent to

the plaintiff informing him of the reopening of his case provided
adequate “notice and opportunity to state his objections to the
Appeals

Council’s

proposed

additional evidence.”

decision

and

to

provide

it

with

Id. at 621.

Finally, as to the last Eldridge factor, the Sixth Circuit
noted, as did the magistrate judge here, that the government’s
interest in not remanding every case for a full second evidentiary
hearing whenever new evidence is necessary based upon the Appeals
Council’s disagreement with a conclusion of the ALJ is quite high.
Requiring

remand

in

all

cases

where

the

Appeals

Council’s

determination of the date last insured requires a finding of
disability status during an unadjudicated period “would drain SSA

8

resources and impose a substantial administrative burden for little
or no increase in the accuracy of benefits determinations.”
As

explained

above,

this

Court

finds

in

line

with

Id.
the

magistrate judge and the determinations of the Ferriell court. The
plaintiff received ample notice and opportunity to present evidence
and

argument

regarding

her

disability

status

during

the

unadjudicated period through the procedures used by the Appeals
Council.

She chose not to request to appear before the council,

but she did present new evidence, which the Appeals Council fully
considered.

Accordingly, the procedures utilized by the Appeals

Council afforded the plaintiff all required procedural safeguards
required by the Fifth Amendment, and did not violate her due
process rights.
B.

Alleged deficiency in Appeals Council’s decision
The plaintiff next claims that the Appeals Council’s decision

is grossly deficient because it fails to fully consider the
evidence presented regarding the unadjudicated period pursuant to
the five-step evaluation process for determining if a claimant is
disabled.

See 42 U.S.C. § 423(d)(2)(A) (defining disability); 20

C.F.R. § 404.1520 (explaining the five-step sequential evaluation
process).

The

plaintiff

claims

that

the

Code

of

Federal

Regulations requires that this five-step process be completed in
its entirety for each disability determination, and that the
Appeals Council failed to complete the required evaluation.

9

The

plaintiff argues that the Appeals Council simply concludes that she
was not disabled during the unadjudicated period without explaining
its findings at each step of the five-step inquiry.
disagrees

and

finds

that

the

Appeals

Council’s

This Court
opinion

was

sufficient.
This

Court

agrees

with

the

plaintiff

that

the

Appeals

Council’s opinion regarding the plaintiff’s disability status
during the unadjudicated period does not explicitly outline and set
forth findings at each step of the five-step evaluation process.
However, the findings that it does set forth clearly incorporate by
reference the findings of the ALJ, and indicate that it affirms and
adopts all legal and factual findings of the ALJ as to the
plaintiff’s disability status during the period that he considered.
It

further

indicated

that

it

considered

the

newly

submitted

evidence in conjunction with all of the evidence already in the
record and upon which the ALJ based his decision. See Higginbotham
v. Barnhart, 405 F.3d 332, 337 (5th Cir. 2005).
The Appeals Council then stated that its consideration of the
newly submitted evidence regarding the unadjudicated period along
with the evidence previously considered by the ALJ, led the Appeals
Council

to

“essentially

conclude

that

cumulative

and

the

new

[did]

evidence

not

show

submitted
any

was

significant

worsening of the claimant’s condition from January 1, 2011, through
April 19, 2011 [the unadjudicated period].”

10

ECF No. 7 Ex. 2 *6.

As

a

result,

the

Appeals

Council

found

that

the

ALJ’s

considerations and determinations as to the five-step inquiry
during

the

adjudicated

unadjudicated period.

period

were

also

applicable

to

the

The Appeals Council thus concluded that,

based upon these findings of the ALJ, the plaintiff was not
disabled during the unadjudicated period.

This Court finds that,

because the Appeals Council found the claimant’s condition to be
essentially the same during the unadjudicated period as it was
during the adjudicated period, it properly relied upon the fivestep inquiry already done by the ALJ, and with which the Appeals
Council expressed its agreement.

No new five-step inquiry was

necessary.
C.

Challenges to the merits of the Commissioner’s decision
The remaining three claims of error to which the plaintiff

points

all

argue

that

the

Commissioner were incorrect.

merits

of

the

decision

of

the

As to allegations against the merits

of the Commissioner’s decision and the findings of the ALJ and
Appeals Council, the magistrate judge and this Court review the
opinions and findings to determine whether they were “supported by
substantial evidence and whether the correct law was applied.”
Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).

It is not

the position of the district court in cases such as this to decide
whether it agrees with the Commissioner’s findings.

Johnson v.

Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (citing Craig v.

11

Chater, 76 F.3d 585, 589 (4th Cir. 2001)).

Rather, as was well

articulated

in

by

Magistrate

Judge

Seibert

his

report

and

recommendation, the role of this Court is only to determine whether
the ALJ’s determination was supported by “substantial evidence.”
Id.

This standard requires only that this Court find that “such

relevant evidence [exists] as a reasonable mind might accept as
adequate to support a conclusion” in line with that reached by the
ALJ.

Pierce v. Underwood, 487 U.S. 552, 664-65 (1988).
i.

Weight given to opinion of plaintiff’s treating source

The plaintiff’s first claim that the Commissioner’s decision
was erroneous alleges that the Appeals Council gave insufficient
weight to the opinion of the plaintiff’s treating source. In
addressing this argument, the magistrate judge properly noted that
all medical opinions must be considered by the ALJ and the Appeals
Council.

20 C.F.R. §§ 404.1527(b), 416.927(b).

Further, the

magistrate judge correctly recognized that “[t]he opinion of a
claimant’s treating physician is entitled to great weight and may
be disregarded only if there is persuasive contradictory evidence.”
Evans v. Heckler, 734 F.2d 1012, 1015 (4th Cir. 1984).

This

concept is known as the “treating physician rule.”
However,

while

the

opinions

of

treating

physicians

are

entitled to great weight under this rule, the treating physician
rule does not require that they be given controlling weight.
Mastro v. Apful, 270 F.3d 171, 178 (4th Cir. 2001).

12

As was noted

by the magistrate judge, the final decision as to ultimate issues
such as whether or not the claimant is disabled or able to work is
always with the ALJ and the Appeals Council, and both of these
entities are free to accept or reject medical opinions of treating
physicians if the opinions are found to be contradictory to other
persuasive evidence on record.

20 C.F.R. §§ 404.1527(e)(1)-(3),

416.927(e)(1); Evans, 734 F.2d at 1015.

Further, while “treating

physician opinions on issues reserved to the Commissioner,” such as
the claimant’s residual functional capacity, and whether or not a
claimant is disabled as that term is defined in the statute,2 “must
never be ignored,” opinions on such issues “are never entitled to
controlling weight or special significance.”
With

the

above

considerations,

as

SSR 96-5p.

well

as

this

Court’s

standard of review in mind, the magistrate judge considered the
opinion of nurse practitioner Cathy McCoy, the plaintiff’s treating

2

The Residual Functional Capacity Assessment, the application
of impairments and other considerations to the determination of
whether a claimant is “disabled,” as well as the final
determination of whether a claimant is “disabled” under the statute
are “administrative findings” left for the Commissioner alone. See
SSR 96-5p (July 2, 1996).
The plaintiff here claims that the
magistrate judge was incorrect in asserting that no special
significance is to be given to treating source opinions on such
administrative findings.
However, this Court agrees with the
magistrate judge, and is supported in this conclusion by the direct
statements of the Social Security Administration in SSR 96-5p that
such opinions are actually administrative findings, and left
exclusively to the Commissioner. While treating source opinions on
the same should be considered, they are not entitled to the
deference and weight given to “medical source statement” opinions
under the treating source rule. Id.
13

source, and the weight given to it by the Appeals Council.

Ms.

McCoy’s opinion and accompanying medical assessments were presented
for the first time to the Appeals Council when it reviewed the
plaintiff’s disabled status during that period not previously
considered by the ALJ.
The opinion of Ms. McCoy which was submitted to the Appeals
Council was presented as a form entitled “Medical Assessment of
Ability to do Work-Related Activities Physical” and included her
assessments of the plaintiff’s ability to lift and carry, stand and
walk, and to sit.

The form also indicated Ms. McCoy’s assessment

as to the ways in which the plaintiff’s impairments limited her
ability

to

perform

certain

postural

activities

and

physical

functions, as well as environmental restrictions created by her
impairments.

Finally, Ms. McCoy indicates on the form that it is

her opinion that the plaintiff “cannot work because of physical
limitation.”

The Appeals Council indicated that it considered Ms.

McCoy’s opinion as articulated on this form as required by SSR
06-3p,3 but ultimately found it to be “inconsistent with the record
as a whole and with her own notes, which indicate that she
encouraged the claimant to walk and exercise more.”

It further

found the new evidence of the form completed by Ms. McCoy and of an

3

SSR 06-3p (Aug. 9, 2006) sets forth factors to be considered
by the ALJ and the Appeals Council in determining the proper weight
to give to the medical opinions of acceptable medical sources.
This Court does not believe that a credible argument can be
presented that Ms. McCoy is not an acceptable medical source.
14

updated MRI “essentially cumulative [to the evidence submitted to
the ALJ with regard to the adjudicated period] and does not show
any significant worsening of the claimant’s condition during the
unadjudicated period.”

ECF No. 7 Ex. 2 *5.

The magistrate judge found that substantial evidence supported
the Appeals Council’s decision to give little weight to Ms. McCoy’s
opinion that the plaintiff was unable to work.

In support of this

conclusion,

that

the

magistrate

judge

determined

Ms.

McCoy’s

opinion that the plaintiff was unable to work and thus totally
disabled to be an opinion on an ultimate issue, and accordingly, as
explained above, not entitled to any special significance.
C.F.R. § 404.1527(e)(3).
light

of

this,

the

See 20

The magistrate judge then found that, in

Appeals

Council

properly

supported

its

determinations regarding Ms. McCoy’s opinion by stating that it
found the record, including Ms. McCoy’s own medical records, to be
inconsistent with a finding of total disability. This Court agrees
with the magistrate judge in both of these respects.
In the medical assessment form filed by the plaintiff and
completed by Ms. McCoy, Ms. McCoy offers an array of medical
assessments, and she also offers an opinion as to the plaintiff’s
ability to work as a result of those medical assessments.

Ms.

McCoy’s

the

medical

assessments

indicate

her

opinions

as

to

plaintiff’s limitations based upon her medical impairments, but
give no opinion as to what the result of these limitations and

15

impairments should be when applied to the requirements of the
statute in determining whether or not the plaintiff is disabled.
These assessments are entitled to the great weight afforded under
the treating physician rule.

See

20 C.F.R. §§ 404.1527(a),

416.927(a) (Defines medical opinions as “statements from . . .
acceptable medical sources that reflect judgments about the nature
and

severity

diagnosis

of

and

your

impairment(s),

prognosis,

what

you

including
can

your

still

do

symptoms,
despite

impairment(s), and your physical and mental restrictions.”). As to
these medical assessments, there is no indication that the Appeals
Council did not afford them great weight.

In its opinion, the

Appeals Council simply asserts that it found that all newly
submitted evidence showed that the plaintiff’s medical condition
did not change during the unadjudicated period and thus it was
“essentially cumulative” to that considered by the ALJ and did not
warrant a deviation from his findings for the unadjudicated period.
However, Ms. McCoy’s opinion that the plaintiff is unable to
work amounts to an “administrative finding” rather than a medical
opinion

because

such

a

determination

“would

direct

the

determination or decision of disability.” SSR 96-5p. Accordingly,
the Appeals Council was not required to give it any “special
significance.”

As such, this Court agrees with the magistrate

judge that the Appeals Council’s decision to discredit Ms. McCoy’s
opinion

as

to

the

plaintiff’s

16

ability

to

work

was

properly

supported and based in substantial fact.

The Appeals Council, in

noting its decision to discredit Ms. McCoy’s opinion in this
regard, indicated that it made the decision to do so because it
found her opinion to be counter to both her own medical records and
to the record evidence as a whole.

As such, for the reasons

articulated by the magistrate judge, the Appeals Council’s decision
to discredit the opinion of Ms. McCoy as to the plaintiff’s ability
to work was supported by substantial evidence.4
ii. The ALJ’s finding that two of the plaintiff’s impairments
were not “severe” under the statute
The plaintiff’s second assignment of error to the merits of
the Commissioner’s decision claims that the ALJ erred in failing to
take into account the “voluminous evidence” in the record which in
supports a finding that the plaintiff’s headaches, and carpal
tunnel

syndrome,

trigger

thumb,

4

trigger

finger

and

elbow

The plaintiff asserts that the magistrate errs in this regard
partially because he states that “[t]he Appeals Council also found
that Ms. McCoy’s statement was inconsistent with the additional MRI
that was submitted, which indicated only mild degenerative
changes,” when the Appeals Council did not cite this MRI as a
reason for its decision to discredit Ms. McCoy’s opinion. While
this Court agrees that the Appeals Council did not directly cite to
the MRI as being inconsistent with Ms. McCoy’s opinion, this
clarification does not render the magistrate judge’s assertion as
to the MRI and Ms. McCoy’s opinion erroneous. The Appeals Council
did find that the MRI was consistent with its conclusion that
little change had occurred in the plaintiff’s condition during the
unadjudicated period, and this supports its decision to discredit
Ms. McCoy’s opinion as inconsistent with the record before it as a
whole. As such, while the magistrate judge’s assertion in this
regard may be technically incorrect, this Court finds the basis of
his point to be proper and in line with the record.
17

epicondylitis constituted “severe impairments” under the statute,
when he concluded that these impairments were non-severe.

The

magistrate judge found that the ALJ’s determinations in this regard
were supported by substantial evidence, and outlined evidence which
he believed supported the ALJ’s decision.

In the plaintiff’s

objections to the report and recommendation, she argues that the
magistrate judge erred by failing to address the evidence contrary
to the ALJ’s conclusions, and by utilizing “post hoc reasoning” by
relying upon evidence not relied upon by the ALJ in order to
demonstrate substantial evidence in support of the ALJ’s decision.
This Court does not quarrel with the plaintiff’s presentation
of the existence of evidence which may support a finding other than
that reached by the ALJ.

However, as noted above, the role of this

Court is only to determine whether the ALJ’s determination was
supported by “substantial evidence.” Johnson v. Barnhart, 434 F.3d
650, 653 (4th Cir. 2005) (citing Craig v. Chater, 76 F.3d 585, 589
(4th Cir. 2001)). This standard requires only that this Court find
that “such relevant evidence [exists] as a reasonable mind might
accept as adequate to support a conclusion” in line with that
reached by the ALJ.
(1988).

Pierce v. Underwood, 487 U.S. 552, 664-65

As such, while evidence may well exist to support the

conclusion opposite to that reached by the ALJ, such is not a
concern of this Court so long as substantial evidence exists to
support the decision of the ALJ.

18

Considering the above standard of review, upon de novo review
of the magistrate judge’s report and recommendation, the briefing
submitted by the parties, and the administrative record, along with
the opinion of the ALJ, this Court agrees with the magistrate judge
that the ALJ’s determinations that the plaintiff’s headaches and
her carpal tunnel syndrome, trigger thumb, trigger finger and elbow
epicondylitis do not constitute severe impairments were supported
by substantial evidence. As the magistrate judge noted with regard
to the plaintiff’s headaches, a significant amount of medical
evidence existed which showed that a number of the plaintiff’s
presentations to medical professionals between early 2009 and 2011
showed that her headaches responded to treatment and did not occur
with great frequency.

There was also evidence presented that the

plaintiff received a neurological exam that was normal.
With regard to the plaintiff’s carpal tunnel syndrome, trigger
thumb, trigger finger and tennis elbow, this Court also agrees with
the magistrate judge that substantial evidence exists to support
the ALJ’s adverse conclusion.

Medical evidence was also submitted

as to these impairments that shows that the plaintiff admitted on
multiple occasions that she was “doing pretty well” as a result of
treatment.

Medical

evidence

was

also

presented

wherein

her

treating providers indicated that she was able to make a fist and
to oppose her thumb and finger and that she had nearly full
strength and range of motion.

All of this evidence supports the

19

ALJ’s finding that the plaintiff’s surgical treatment for these
impairments was largely successful.

This Court believes that the

above evidence cited by the magistrate judge, and also that cited
by the defendant and found within the record that was before the
ALJ, is sufficient to support a reasonable conclusion that the
plaintiff’s headaches and her carpal tunnel, trigger thumb, trigger
finger and tennis elbow were not “severe impairments” under the
statute.
This Court does not disagree with the plaintiff’s contention
that evidence can be found on the record to support the conclusions
which the plaintiff urges this Court to adopt. However, this Court
has considered the entirety of the evidence presented along with
the opinion of the ALJ, and as noted above, finds that substantial
evidence exists on the record to allow a reasonable mind to reach
the conclusion reached by the ALJ with regard to the severity of
these impairments. See Johnson, 434 F.3d at 653 (“In reviewing for
substantial evidence, the reviewing court does not undertake to reweigh conflicting evidence . . . .

Where conflicting evidence

allows reasonable minds to differ as to whether a claimant is
disabled, the responsibility for that decision falls in the ALJ.”)
Further, the plaintiff claims in her objections that the
magistrate judge utilized post hoc reasoning in coming to his
conclusion that the ALJ did not err in his determinations in this
regard because the magistrate judge relied upon medical evidence to

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which the ALJ did not refer in his opinion.

This Court disagrees

with the plaintiff’s claim that the magistrate judge erred in this
regard. The ALJ clearly noted at the beginning of his statement of
“Findings of Fact and Conclusions of Law” that he engaged in a
“careful consideration of the entire record.” ECF No. 7 Ex. 2 *17.
Accordingly, the magistrate judge did not consider any evidence
which the ALJ did not review in reaching his final determinations
as to severe impairments because the ALJ considered all of the
evidence before him on the record.
iii.

The Commissioner’s credibility determination as to the

plaintiff’s testimony
Finally, the plaintiff claims that the Commission’s decision
to discredit her testimony as to her subjective complaints was
erroneous and without proper support.

As the magistrate judge

correctly states, the Fourth Circuit has outlined the proper test
to evaluating a claimant’s subjective complaints in Craig, 76 F.3d
585.
an

A full explanation of the test set forth in Craig, as well as
outline

of

the

Federal

Regulations’

stated

factors

for

consideration of a claimant’s credibility, can be found in the
magistrate judge’s report and recommendation.

ECF No. 17 *20-21.

The magistrate judge also correctly noted that, upon review of
the ALJ’s credibility determination, the district court is to give
“the ALJ’s observations concerning these questions . . . great
weight” because “he had the opportunity to observe the demeanor and

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to determine the credibility of the claimant.” Shively v. Heckler,
739 F.2d 987, 989 (7th Cir. 1984) (citing Tyler v. Weinberger, 409
F. Supp. 776 (E.D. Va. 1976)).

As such, a district court is to

“reverse an ALJ’s credibility determination only if the claimant
can show it was ‘patently wrong.’”

Powers v. Apfel, 207 F.3d 431,

435 (7th Cir. 2000) (citing Herr v. Sullivan, 912 F.2d 178, 181
(7th Cir. 1990)).

The plaintiff here has failed to make such a

showing.
As the magistrate judge outlines, the ALJ supported his
decision to discredit the plaintiff’s testimony regarding pain and
physical limitations with a significant amount of record evidence
contradictory to her subjective statements.

The plaintiff claims

that the magistrate judge failed to address her contentions that
the ALJ gave no explanation as to why he believed that the cited
record evidence did not support her testimony. However, this Court
believes that it is clear without further explanation that the
record evidence noted by the magistrate judge is quite inconsistent
with the plaintiff’s statements. For example, the plaintiff stated
that her pain medication resulted in significant side effects but
offered her no relief.
to

take

the

However, she also noted that she continued

medication.

These

two

statements

inconsistent with one another, and the ALJ so noted.

are

clearly

Further, the

plaintiff’s ability to drive, shop, pack her husband’s lunch, lie
in a tanning bed, fold laundry, dust, visit with family, and

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socialize is clearly inconsistent with full disability.

As such,

this Court cannot conclude that the plaintiff has shown that the
ALJ’s credibility determination was patently incorrect. This Court
thus

affirms

and

adopts

the

magistrate

judge’s

report

and

recommendation in its entirety.
IV.

Conclusion

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

The

defendant’s motion for summary judgment (ECF No. 14) is thus
GRANTED and the plaintiff’s motion for summary judgment (ECF No.
10)

is

DENIED.

AFFIRMED.

The

decision

of

the

Commissioner

is

hereby

It is further ORDERED that this case be DISMISSED WITH

PREJUDICE 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
in favor of the defendant.
DATED:

January 15, 2013

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

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