Smith v. Commissioner of Social Security
Filing
17
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE: Magistrate's 14 Report and recommendation is AFFIRMED and ADOPTED in its entirety. Defendant's 10 Motion for Summary Judgment is GRANTED and the Plaintiff's 8 Motion for Summary Judgment is DENIED. Clerk directed to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 7/18/13. (cc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
LORETTA L. SMITH,
Plaintiff,
v.
Civil Action No. 5:12CV98
(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 14, 2011, 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 1, 2010.
disability
anxiety.
as
a
result
of
bipolar
The plaintiff claimed
disorder,
depression,
and
Her application was denied both initially and upon
reconsideration.
The plaintiff requested a hearing on the matter
and such hearing was held on April 12, 2012, 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
plaintiff’s
Magistrate
complaint,
Judge
the
John
motions
by
S.
Kaull
the
reviewed
parties
and
the
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 Kaull 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 arguing that: (1)
the magistrate judge was incorrect in using evidence not relied
upon by the ALJ in finding that the ALJ properly considered Dr.
Goodykoontz’s opinion; (2) the magistrate judge was incorrect in
using evidence not relied upon by the ALJ in finding that the ALJ
provided valid reasons supporting the unfavorable credibility
finding; and (3) the magistrate judge was incorrect in finding that
the ALJ did not selectively cite to the record evidence in making
his credibility determination.
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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.
III.
Discussion
In her motion for summary judgment, the plaintiff argues that:
(1) the ALJ erred because he failed to properly consider the
opinion of her treating physician, Dr. Goodykoontz; and (2) the ALJ
erred because he failed to provide valid reasons supporting the
unfavorable credibility finding.
In the defendant’s motion for
summary judgment, the defendant asserts that: (1) the plaintiff
failed to meet her burden of proving that she was disabled under
the Act; (2) the ALJ followed the controlling regulations in
evaluating the opinion evidence; and (3) the ALJ followed the
controlling regulations in finding plaintiff’s complaints not
entirely credible.
“Under the Social Security Act, [a reviewing court] must
uphold the factual findings of the Secretary if they are supported
3
by substantial evidence and were reached through application of the
correct legal standard.”
Cir. 1996).
Craig v. Chater, 76 F.3d 585, 589 (4th
“Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
Id.
A
reviewing
court
“does
not
reweigh
evidence
or
make
credibility determinations in evaluating whether a decision is
supported by substantial evidence; ‘[w]here conflicting evidence
allows reasonable minds to differ,’ we defer to the Commissioner’s
decision.”
Thompson v. Astrue, 442 F. App’x 804, 805 (4th Cir.
2011) (quoting Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir.
2005)). The magistrate judge addressed the plaintiff’s assignments
of error in turn and found that substantial evidence existed to
support the ALJ’s findings.
A.
Treating physician
As indicated above, the plaintiff claims that the ALJ erred
because he failed to properly consider the treating physician’s
opinion.
In making this claim, she first argues that the ALJ
specifically erred by failing to set forth a discussion of each of
the factors contained in 20 C.F.R. §§ 404.1527(d) and 416.927(d).
After reviewing the ALJ’s opinion, however, the magistrate judge
found that “[t]he ALJ’s decision was ‘sufficiently specific to make
clear . . . the weight the adjudicator gave to the treating
source’s medical opinion and the reasons for that weight.’”
ECF
No. 14 *29 (quoting Pinson v. McMahon, No. 3:07-1056, 2009 WL
4
763553 (D.S.C. Mar. 19, 2009)).
In making this finding, the
magistrate judge put forth specific pieces of evidence that the ALJ
considered in making his decision.
See ECF No. 14 *30-31.
Such
evidence includes information from other physicians who treated the
plaintiff.
The magistrate judge stated that this information
provides support for the ALJ’s finding that Dr. Goodykoontz’s
opinion was “inconsistent with the full longitudinal record[,]” was
not supported by the record, and would thus be accorded little
weight.
ECF No. 6 Ex. 2 *15.
The plaintiff objects to these findings, arguing that the ALJ
did not rely on any of the evidence that the magistrate judge used
to support the ALJ’s rejection of Dr. Goodykoontz’s opinion.
The
plaintiff contends that this is post hoc reasoning, which is
improper because federal courts must judge the ALJ’s decision
solely on the reasoning set forth by the ALJ. This Court, however,
finds that the plaintiff’s objection is without merit.
The ALJ
issued a detailed opinion, outlining the findings of the different
doctors, including the plaintiff’s treating physician. See ECF No.
5 Ex. 2.
The plaintiff seems to take issue with the magistrate
judge’s findings because the information he cites to illustrate
that there was substantial evidence for the ALJ’s findings was not
included in the same paragraph as the ALJ’s statement that Dr.
Goodykoontz’s opinion was inconsistent with the record.
This,
however, is inconsequential as courts reviewing an ALJ’s findings
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are to review the entire record to determine whether substantial
evidence exists for those findings.
Siburt v. Secretary of Health
and Human Services, 526 F. Supp. 1087, 1088 (N.D. W. Va. 1981)
(“[I}t is the Court’s duty to closely scrutinize the entire record
to determine if substantial evidence for the Secretary’s decision
is present.”) (citing Flack v. Cohen, 413 F.2d 278 (4th Cir.
1969)).
“Although the treating physician rule generally requires a
court to accord greater weight to the testimony of a treating
physician, the rule does not require that the testimony be given
controlling weight.” Hunter v. Sullivan, 993 F.2d 31, 35 (4th Cir.
1992).
Further, when a “physician’s opinion is not supported by
clinical evidence or if it is inconsistent with other substantial
evidence, it should be accorded significantly less weight.”
v. Chater, 76 F.3d 585, 590 (4th Cir. 1996).
Craig
After a de novo
review of the entire record, and more specifically the entirety of
the ALJ’s opinion, this Court agrees with the magistrate judge’s
findings.
the
The opinions of Dr. Goodykoontz are inconsistent with
record.
Specifically,
Dr.
Goodykoontz’s
opinion
was
inconsistent with the plaintiff’s daily activities (see ECF No. 6
Ex. 2 *15), with her treatment history (see ECF No. 6 Ex. 2 *1516), and with the other physician’s findings and examinations (see
ECF No. 6 Ex. 2 *15-17).
Therefore, it was proper for the ALJ to
6
accord “little weight” to Dr. Goodykoontz’s opinion.
See ECF No.
6 Ex. 2 *18.
The plaintiff also argues that the ALJ erred in rejecting Dr.
Goodykoontz’s opinion because of Dr. Goodykoontz’s general finding
that plaintiff was unable to work due to her disability.
The
magistrate judge found this argument to lack merit, and this Court
agrees.
As explained above, the ALJ accorded little weight to Dr.
Goodykoontz’s opinion because of its inconsistencies with the
entirety of the record.
After stating that Dr. Goodykoontz’s
opinion was inconsistent, the ALJ then stated that “to the extent
that [Dr. Goodykoontz] opines on the ultimate issue of disability,
these opinions tread on an issue reserved for the Commissioner.”
ECF No. 6 Ex. 2 *18.
As the magistrate judge indicated, such a
statement is correct.
As other courts have indicated, “statements
that a claimant could not be gainfully employed ‘are not medical
opinions but opinions on the application of the statute, a task
assigned solely to the discretion of the [Commissioner].’”
Cruze
v. Chater, 85 F.3d 1320, 1325 (8th Cir. 1996) (quoting Nelson v.
Sullivan, 946 F.2d 1314, 1316 (8th Cir. 1991).
Therefore, it was
not in error that the ALJ accorded such opinions with little
weight.
B.
Credibility determination
The plaintiff next argued that the ALJ erred in assessing the
plaintiff’s credibility.
The plaintiff specifically argues that
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the ALJ’s credibility determination was flawed because it took into
account her filing an application for benefits, because the ALJ
only cited certain portions of the record and the testimony, and
because
it
ignored
the
plaintiff’s credibility.
medical
opinions
that
addressed
the
The defendant, however, argues that the
ALJ’s credibility determination is supported by the evidence.
As the magistrate judge indicated, in the United States Court
of Appeals for the Fourth Circuit, a two-step process exists for
determining whether a person is disabled by pain or other symptoms.
See Craig v. Charter, 76 F.3d 585, 594-96 (4th Cir. 1996).
the
ALJ
must
determine
whether
the
claimant
has
a
First,
medical
impairment that could reasonably cause the alleged symptoms.
Id.
at
the
595.
Then,
the
ALJ
must
expressly
consider
whether
plaintiff has the impairment alleged and must consider all of the
evidence, including the plaintiff’s own description of symptoms.
Id. at 594-596.
An ALJ’s credibility determination is subject to
reversal only if the plaintiff demonstrates that it was “‘patently
wrong.’”
Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000)
(quoting Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 1990)).
While the ALJ did find that the plaintiff’s impairments could
reasonably
impairments,
be
expected
the
ALJ
to
found
cause
that
the
the
alleged
symptoms
plaintiff’s
and
statements
concerning the impairments limiting effects were not entirely
credible.
The
magistrate
judge
8
found
that
in
making
this
determination, the ALJ discussed, considered, and weighed the
objective evidence.
Specifically, he found that the ALJ evaluated
the evidence from those physicians involved in the treatment and
evaluation of the plaintiff, including her treating physician.
Further,
the
magistrate
judge
found
that
the
ALJ
adequately
identified inconsistencies in the plaintiff’s statements and did
not
engage
in
any
selective
citation,
as
he
reviewed
those
statements contained in the Function Report, those she made to a
physician involved with her evaluation, and those she made during
the administrative hearing.
the
record,
the
magistrate
Based on this finding and a review of
judge
determined
that
substantial
evidence supports the ALJ’s credibility determination.
The
plaintiff
objects
to
the
magistrate
judge’s
finding
arguing that the magistrate judge relied on evidence not included
in the ALJ’s reasoning regarding the plaintiff’s credibility.
Specifically, the plaintiff argues that the magistrate judge should
not have relied on any of the evidence from the physicians involved
with the plaintiff’s treatment and evaluation, as that evidence was
not found in the portion of the ALJ’s opinion which addressed the
plaintiff’s credibility.
As this Court previously noted above,
courts reviewing an ALJ’s findings are to review the entire record
to
determine
findings.
whether
substantial
evidence
Siburt, 526 F. Supp. at 1088.
to the plaintiff’s credibility.
exists
for
those
The ALJ made a finding as
The magistrate judge and this
9
Court are not confined to the section in which that finding was
made, but rather are entitled to review the entire record to
determine if substantial evidence exists to support that finding.
The plaintiff next objects to the magistrate judge’s finding
concerning the ALJ’s opinion that the plaintiff’s statements were
inconsistent.
Specifically, the plaintiff continues to assert her
argument that the ALJ selectively cited to the record evidence in
finding that the plaintiff made inconsistent statements, and the
magistrate judge was wrong to find otherwise.
After a de novo
review of the record, however, this Court disagrees with the
plaintiff’s contention and finds that the ALJ did not selectively
cite to the evidence in the record.
As the magistrate judge indicated, the ALJ reviewed all of the
plaintiff’s statements that were contained in the record, including
those made at the administrative hearing.
See ECF No. 6 Ex. 2 *15.
While the ALJ did paraphrase the plaintiff’s testimony made at the
administrative hearing, this Court finds that the description
provided by the ALJ of that testimony, which was that the plaintiff
said she got up in the morning, ate, and laid around the house, was
consistent with the answer she provided to the ALJ question
concerning her daily activities during the hearing.
This Court
recognizes that the answer that the plaintiff provided to the ALJ
did include other things such as changing her baby’s diaper and
getting the baby food.
See ECF No. 6 Ex. 2 *49-50.
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The remainder
of the plaintiff’s answer, however, consisted of her explaining
that her husband usually cares for her children and does the
household chores.
Id.
The ALJ indicated that this testimony was
inconsistent with testimony that she provided in other instances.
Specifically, when she told a physician involved in this action
that she was able to maintain her personal hygiene, occasionally
clean, wash dishes, and do laundry. Further, she indicated to this
same doctor that normally she supervised her children’s homework,
made their dinner, and supervised their baths and bed routines.
While, the ALJ did not also include the plaintiff’s statements to
the doctor that she did not do yard work, rarely grocery shopped,
rarely ran errands, rarely drove, occasionally sat on the porch,
and rarely read, this does not equate to selective citation by the
ALJ.
The ALJ sufficiently showed how the plaintiff’s testimony
during the hearing differed from those statements made to that
particular doctor.
There is nothing that requires the ALJ to also
cite the consistencies with such testimony.
As such, substantial
evidence supports the ALJ’s findings concerning the plaintiff’s
credibility, as this Court agrees that inconsistencies existed in
the plaintiff’s testimony on record.
IV.
Conclusion
Based upon a de novo review, the magistrate judge’s report and
recommendation is hereby AFFIRMED and ADOPTED in its entirety.
Thus, for the reasons stated above, the defendant’s motion for
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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:
July 18, 2013
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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