Pritt v. Commissioner of Social Security

Filing 21

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT: Denying 13 MOTION for Summary Judgment filed by Timothy Joe Pritt, and Granting 15 MOTION for Summary Judgment filed by Commissioner of Social Security; Adopting 18 REPORT AND RECOMMENDATIONS re 1 Complaint filed by Timothy Joe Pritt. Case to be Dismissed wth Prejudice and Stricken from active docket of this Court. Clerk directed to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 1/24/14. (soa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TIMOTHY JOE PRITT,
Plaintiff,
v.

Civil Action No. 5:13CV43
(STAMP)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
I.

Procedural History

The plaintiff in this civil action filed claims for Disability
Insurance Benefits (“DIB”) under Title II of the Social Security
Act and for Supplemental Security Income (“SSI”) under Title XVI,
claiming that he suffered from disability beginning October 1,
2007. The plaintiff’s underlying claims allege that he is disabled
due to coronary artery disease, hypertension, hyperlipidemia,
degenerative joint disease, mild restrictive pulmonary disease, and
a history of bilateral hearing loss.

Both claims were denied both

initially and upon reconsideration.

The plaintiff then requested

a hearing, which was granted and held before an Administrative Law
Judge (“ALJ”).

At this hearing, the plaintiff testified and was

represented by counsel.
testimony.

The

ALJ

Additionally, a vocational expert offered
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

Appeals Council denied review, and the ALJ’s decision became the
final

decision

of

the

defendant,

the

Commissioner

of

Social

Security (“Commissioner”).
The plaintiff then filed this action against the Commissioner
seeking review of the final decision of the ALJ.

Both the

plaintiff and the defendant filed motions 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, the plaintiff’s motion for summary judgment be denied, and
the matter be dismissed and stricken from the Court’s docket. Upon
submitting his report, the magistrate judge 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 timely filed objections to the report and
recommendation.

The defendant later filed a response to the

plaintiff’s objections.

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II.

Facts

In his order, the ALJ found that the plaintiff did not meet
the criteria for any listing that would allow him to obtain the
benefits he was seeking, but instead found that the plaintiff had
a residual functional capacity (“RCF”) to perform light work with
a sit/stand option.

Further, the ALJ found that the plaintiff’s

depressive symptoms were not severe but still gave him the benefit
of the doubt on his allegations of poor concentration and memory
due to his complaints of pain.

Additionally, the ALJ found that

the claimant was only partially credible because the plaintiff’s
testimony was not consistent with the objective evidence of the
record: (1) cardiac symptoms are not documented to be as severe as
he alleges; (2) since his June 2010 catheterization at West
Virginia University Hospital, his symptoms have decreased, and the
plaintiff claimed that his symptoms had worsened; (3) there is
little objective evidence of back and knee pain; and (4) there has
been no treatment for depression.

The ALJ also reasoned that he

gave the greatest weight to the state agency physicians and
consultants because their records were the most consistent with the
longitudinal review of the evidence of the record.

The ALJ did

note that he gave their reports significant weight, despite the
fact that they did not personally see the plaintiff, because they
reviewed the reports of the examiners who did consult with the
plaintiff.

Finally, the ALJ determined that he should give less

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weight to the plaintiff’s treating physician because (1) he found
that her reports were completed before the plaintiff underwent the
catheterization and (2) the evidence does not support a finding
that

the

same

symptoms

reported

before

the

catheterization

continued after the catheterization (the plaintiff had reported he
had improved after the catheterization).
The plaintiff made two arguments in his motion for summary
judgment.

First, the plaintiff asserts that the ALJ should have

concluded that the plaintiff was limited to sedentary exertion
rather than to a limited range of light work.

This is so because

the ALJ failed to consider the plaintiff’s obesity-his treating
physician found that he was obese and the consultative examiner
found he was moderately obese–and thus the ALJ failed to consider
the separate effects that obesity can have on a person’s health
aside from his other conditions. The plaintiff’s second contention
is that the ALJ’s RFC is not supported by substantial evidence
because the ALJ failed to specifically identify the plaintiff’s
limitations in concentration and in memory when he simply limited
the

plaintiff

to

“routine,

repetitive

work

in

a

low

stress

environment.”
The Commissioner also filed a motion for summary judgment.
She first argued that the ALJ did not ignore the plaintiff’s weight
and properly considered it.

The defendant argues that the ALJ

reviewed the evidence that dealt with the plaintiff’s weight and

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noted

that

the

plaintiff

failed

to

follow

the

treatment

recommendations of exercising, eating healthier, and losing weight.
The defendant contends that the ALJ did not need to explicitly
state that he was considering the plaintiff’s obesity but only
needed to rely on the evidence that incorporated the effect of the
plaintiff’s obesity.

The Commissioner thus contends that the ALJ

properly considered the evidence that the plaintiff had improved
after his catheterization, that the plaintiff had a normal gait and
had only minor degeneration in his back and no issues in his knees
(based on x-rays), and that the respiratory condition and other
heart issues were well founded.

Additionally, the Commissioner

notes that the ALJ considered the state agency physician’s findings
which took into account the plaintiff’s obesity and the plaintiff’s
daily activities.

Accordingly, the defendant argued that there is

no evidence that the plaintiff was more limited than what the ALJ
found because he is obese.
The Commissioner then contended that the ALJ did not adopt the
concentration and memory limitation but rather found that the
record did not support such a severe problem.

The defendant

contends that the ALJ based this finding on a substantial record
that

included

psychological

evidence

that

treatment,

the

that

the

plaintiff
plaintiff

never

sought

attributed

his

difficulties with his physical problems, and that the examiners
found he had normal speech and eye contact.

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In his report and recommendation, the magistrate judge found
that the ALJ did not directly mention obesity.

However, the

magistrate judge further found that the ALJ did not have to
specifically mention it.

The magistrate judge found that because

the plaintiff was not actually diagnosed with “obesity” but rather
it only appeared in clinical notes or other medical records, it was
up to the ALJ’s own judgment to establish the presence of obesity.
The magistrate judge noted that only two doctors in the entire
record referred to the plaintiff as obese and neither found added
limitations because of obesity. Further, obesity was not mentioned
at his administrative hearing, even when the plaintiff was asked to
identify his various conditions.

Thus, the magistrate judge found

that the ALJ’s failure to mention “obesity” was harmless error
because

the

ALJ

otherwise

considered

limitations and the record.

all

of

the

plaintiff’s

Finally, the magistrate judge found

that the ALJ did not err in his consideration of the plaintiff’s
RFC.

This is so because the ALJ considered the findings on the

record-that

the

limitations

were

only

mild

and

not

even

moderate-and that the ALJ correctly posed a hypothetical question
at the hearing to the vocational expert regarding that finding.
Accordingly, there was substantial evidence to support the ALJ’s
RFC finding.
The plaintiff made two objections to the magistrate judge’s
report and recommendation.

First, the plaintiff contends that all

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that is required to establish the existence of obesity is that a
physician, who has examined the claimant, reported the patient’s
appearance and build, as well as his weight and height.

The

plaintiff indicates that this was done by the two doctors, Dr.
Whitehair and Dr. Sabio, and thus, he argues, the magistrate judge
was incorrect in concluding that there was not enough evidence to
support establishing obesity.

The plaintiff’s second argument

involves

the

his

plaintiff’s

contention

obesity

nor

that

discuss

ALJ

the

did

not

symptoms

discuss

claimed

plaintiff in the Adult Function report, which included:
pain

in

the

back

hips

and

knees,

endurance, and shortness of breath.

constant

by

the
the

increased

fatigue,

lack

of

All of these symptoms are

symptoms of obesity under the Social Security Ruling 02-1p.

Thus,

the magistrate judge cannot claim that the ALJ used them to make
his finding if he did not discuss them in his opinion.
III.

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 of those
portions of the report and recommendation. As to those portions of

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the recommendation to which no objection was made, this Court will
undertake a clear error review of the magistrate judge’s findings
and recommendation.

See Webb v. Califano, 468 F. Supp. 825 (E.D.

Cal. 1979).
IV.

Discussion

The plaintiff’s objections go to the finding of the magistrate
judge that the plaintiff’s obesity did not need to be considered
separately in the ALJ’s decision. The objections center around the
plaintiff’s contention that the ALJ should have considered the
plaintiff’s obesity along with the rest of the record that the ALJ
had at the administrative hearing.

Because the plaintiff made

objections as to the magistrate judge’s findings about the use of
the plaintiff’s obesity, that part of the magistrate judge’s report
and recommendation will be reviewed under a de novo review.
The plaintiff did not object to the magistrate judge’s finding
that substantial evidence supported the ALJ’s finding that the
plaintiff could perform routine, repetitive work in a low-stress
environment,

with

only

occasional

decision

making

and

only

occasional changes in the work setting. As such, this finding will
be reviewed for clear error.
The following standard will be applicable to all of the
plaintiff’s objections and the magistrate judge’s findings.

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.

8

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)).
A.

Plaintiff’s Obesity
To reiterate, the plaintiff makes two objections to the report

and recommendation that center on the plaintiff’s obesity and the
fact that the ALJ did not consider it in his finding that the
plaintiff was not entitled to benefits.

The plaintiff argues that

the magistrate judge was incorrect in finding that the plaintiff’s
obesity could not be determined simply by the two physicians’
reports of the plaintiff’s height and weight and his appearance.
Further,

the

plaintiff

objects

to

the

magistrate

judge’s

determination that the ALJ relied on the plaintiff’s Adult Function
Reports in which the plaintiff reported increasing pain in the
back, hips, and knees; constant fatigue; lack of endurance and
stamina; shortness of breath; dizziness; and light-headedness. The
plaintiff contends that the ALJ did not consider these reports to
determine that the plaintiff’s symptoms were exacerbated by his

9

weight, and other conditions, because they were not specifically
mentioned in the ALJ’s report.
In the report and recommendation, the magistrate judge noted
that it was not clear from the record that “obesity” was actually
diagnosed

by

either

the

plaintiff’s

treating

physician,

Whitehair, or the state agency physician, Dr. Sabio.

Dr.

Neither

listed “obesity” as a diagnosis, but both listed the weight and
height of the plaintiff in their reports and made observations of
his appearance.

The magistrate judge noted that based on Social

Security Ruling 02-1p, the ALJ was allowed to use his own judgment
to establish the presence of obesity because there was no diagnosis
of “obesity” by the physicians but there were clinical notes or
other medical records consistently showing a high body weight.
Further, the magistrate judge noted two major considerations that
likely went into the ALJ not considering the plaintiff’s obesity:
(1) Dr. Whitehair was found not as credible because her evaluations
of the plaintiff were done before the catheterization in 2010 and
thus were likely less reliable, and (2) obesity was never mentioned
at the hearing by either the plaintiff or his counsel despite the
plaintiff’s allegation that the obesity effects his ability to
work.
Finally, as the plaintiff notes, the magistrate judge found
that the ALJ did consider the effect of the plaintiff’s weight and
other conditions on his ability to perform work.

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The magistrate

judge did state that this was done through the Adult Function
Reports and throughout the medical record.

The magistrate judge

found that because the ALJ considered the actual symptoms of
obesity, it was harmless error that he did not actually label the
plaintiff as obese.
First, as the magistrate judge noted, when appealing the ALJ’s
decision, the claimant must specify how his obesity (1) limits his
functioning and (2) exacerbates his or her own impairments.

Moss

v. Astrue, No. 2:11cv44, 2012 WL 1435665, at *6 (N.D. W. Va. Apr.
25, 2012) (citing Cook v. Astrue, 800 F. Supp. 2d 897, 907-08 (N.D.
Ill. 2011)). The magistrate judge found that the plaintiff had not
done so.

This Court finds that the plaintiff did not do so

exhaustively but that he did so generally throughout his motion for
summary judgment and, less so, in his objections.

Accordingly,

this Court cannot agree with the magistrate judge as to this
finding.
However, this Court does agree with the magistrate judge and
finds that there was substantial evidence to support the ALJ’s
decision to deny the plaintiff’s claims and that the ALJ’s failure
to label the plaintiff obese was harmless error.
1.

Support for a Diagnosis
Physicians’ Reports

of

Obesity

Based

on

the

The Court finds that the ALJ did not have to label the
plaintiff as obese pursuant to Social Security Ruling 02-1p.

The

plaintiff misconstrues the magistrate judge’s reasoning as to his
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finding on this matter.

The magistrate judge did not state that

the ALJ could not find that the plaintiff was obese based on the
two physicians’ height, weight, and personal appearance reports of
the plaintiff, but rather, the magistrate judge stated that the ALJ
had the option of doing so because of the clinical notes of the two
physicians.
The ALJ thus made a determination, based on the physicians’
reports and other evidence on the record, which a “‘reasonable mind
might accept as adequate to support a conclusion.’” Hays, 907 F.2d
at 1456.

Although the plaintiff may believe that an opposite

conclusion should have been drawn, the “‘possibility of drawing two
inconsistent conclusions from the evidence does not prevent an
administrative

agency’s

substantial evidence.’”
ALJ

reviewed

those

findings

from

being

supported

Mut. Mining, Inc., 80 F.3d at 113.

reports,

weighed

them

against

the

by
The

other

evidence,1 and determined that there was substantial evidence to
support a finding that the plaintiff was not entitled to the
benefits he was seeking.

Accordingly, this Court finds that the

ALJ’s decision was consistent with Social Security Ruling 02-1p and
that there is substantial evidence to support the ALJ not deeming
the plaintiff obese.

1

As stated previously, there was the fact that the plaintiff
nor his counsel mentioned obesity during the hearing; and also the
fact that Dr. Whitehair’s reports were all completed prior to the
plaintiff’s 2010 catheterization.
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2.

Substantial Evidence Otherwise
Limitations of the Plaintiff

to

Support

the

Work

The magistrate judge must judge the ALJ’s decision on the
reasoning offered by the ALJ.

S.E.C. v. Chenery Corp., 332 U.S.

194, 196-97 (1947). The plaintiff argues that the magistrate judge
did not do so when he stated that the ALJ considered the Adult
Function

Reports

in

considering

the

plaintiff’s

limiting factor on his ability to perform work.

weight

as

a

This argument is

without merit, however, as will be hereafter explained.
“[I]n reviewing the decision of a lower court, it must be
affirmed if the result is correct ‘although the lower court relied
upon a wrong ground or gave a wrong reason.’”

Chenery Corp., 318

U.S. at 88 (citing Helvering v. Gowran, 302 U.S. 238, 245 (1937)).
Thus, even without the magistrate judge’s reliance on the ALJ’s use
of the Adult Function Reports, the ALJ still provided substantial
evidence to support his finding that the ALJ had taken into
consideration the symptoms that were reported in the Adult Function
Reports.
“There is no format in his written decision that the ALJ must
follow

as

long

as

that

decision

demonstrates

‘sufficient

development of the record and explanation of findings to permit
meaningful review.’”

Smith v. Astrue, No. 12-cv-98, 2013 WL

3783958, at *33 (N.D. W. Va. July 18, 2013) (citation omitted).
Through

five

pages

of

the

ALJ’s

decision,

he

discusses

the

plaintiff’s medical history, physicians’ reports based on the
13

plaintiff’s symptoms and reported ailments, questionnaires the
plaintiff had filled out based on his symptoms, and also the
plaintiff’s own testimony at the administrative hearing.

See

Decision of Administrative Law Judge *12-17 (Aug. 11, 2011).
Throughout this review, the ALJ notes all of the symptoms that the
plaintiff claims the ALJ did not consider because the ALJ did not
specifically mention the Adult Function Reports.

The ALJ notes

instances where the plaintiff reported pain in his back, hips, and
knees; constant fatigue; lack of endurance and stamina; shortness
of breath; dizziness; and becoming light-headed easily throughout
his recitation of the record he was considering.

Thus, as the

magistrate judge found, the ALJ’s failure to specifically state
that he was considering the plaintiff’s weight, or that he was
considering the plaintiff as being obese, was harmless error.

The

ALJ relied on substantial evidence that included reports of the
plaintiff’s

symptoms

that

the

plaintiff

determining his ability to work.

argues

were

key

to

Accordingly, the ALJ’s decision

should be upheld.
B.

The ALJ’s RFC Finding
As stated previously, the plaintiff did not object to the

magistrate judge’s finding that substantial evidence supported the
ALJ’s determination as to the RFC status of the plaintiff. The ALJ
had found that the plaintiff could perform routine, repetitive work

14

in a low-stress environment, with only occasional decision making
and only occasional changes in the work setting.
In his report and recommendation, the magistrate judge noted
that the ALJ had considered the evaluations of the plaintiff by the
state agency officials. Further, the magistrate judge reviewed the
hypothetical question that was posed to the vocational expert at
the administrative hearing.

The vocational expert had provided a

list of jobs that were available in the region.

The ALJ next

described, in his question, a job that would support the RFC status
that the plaintiff was ultimately given.

The vocational expert

then answered that the jobs he had listed could be fulfilled by a
person with the limitations the ALJ had described in his question.
Because of the ALJ’s review of the record, and his adequately posed
hypothetical question to the vocational expert, the magistrate
judge found that there was substantial evidence for the ALJ to rely
on.
This Court finds that the magistrate judge did not err in
finding that there was substantial evidence for the ALJ to rely on
in making his determination of the plaintiff’s restricted RFC
status.

Thus, the magistrate judge’s finding was not in clear

error and must be upheld.
V.

Conclusion

Based upon a de novo review of the findings of the report and
recommendation that were objected to by the plaintiff and a clear

15

error review of the findings of the report and recommendation that
were not objected to by the plaintiff, 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.

Thus, for the reasons stated

above, the defendant’s motion for summary judgment (ECF No. 15) is
GRANTED and the plaintiff’s motion for summary judgment (ECF No.
13) is DENIED.

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
on this matter.
DATED:

January 24, 2014

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

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