Mills v. Commissioner of Social Security

Filing 17

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 16 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE. Plaintiff's 9 motion for summary judgment is GRANTED IN PART AND DENIED IN PART; defendant's 14 motion for summary judgment is DENIED. This case is REMANDED to the Commissioner for furthr action in accordance with this order. Clerk directed to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 4/1/14. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
IRENE MILLS,
Plaintiff,
v.

Civil Action No. 5:13CV57
(STAMP)

CAROLYN W. COLVIN,
Acting Commissioner
of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.

Procedural History

The plaintiff, Elisha Schartiger, filed an application for
Supplemental Security Income (“SSI”) under Title II of the Social
Security Act. In the application, the plaintiff alleged disability
since November 1, 2006 due to cervical degenerative disc disease,
chronic

pain

syndrome,

asthma/chronic

obstructive

pulmonary

disorder (“COPD”), borderline IQ, anxiety disorder, and alcohol
abuse.

This was the plaintiff’s second application, the plaintiff

had previously been denied benefits in 2010.
The Social Security Administration denied the plaintiff’s
application

initially

and

on

reconsideration.

The

plaintiff

requested a hearing before an Administrative Law Judge (“ALJ”), and
a hearing was held at which the plaintiff was represented by
counsel.

At the hearing, the plaintiff testified on her own behalf, as
did a vocational expert.

The ALJ issued a decision finding that

the plaintiff was not disabled under the Social Security Act but
instead found that the plaintiff had a Residual Functional Capacity
(“RFC”) to perform less than a full range of sedentary work.
Further, the ALJ found that the plaintiff was unable to perform any
past relevant work. However, the ALJ found that there were jobs in
the national economy that the plaintiff could perform.
plaintiff’s benefits were again denied.

Thus, the

The plaintiff then timely

filed an appeal of the decision to the Appeals Council.

The

Appeals Council denied the plaintiff’s request for review.
The plaintiff then filed a request for judicial review of the
ALJ’s decision in this Court.

The case was referred to United

States Magistrate Judge John S. Kaull for submission of proposed
findings of fact and recommendation for disposition pursuant to 28
U.S.C. § 636(b)(1)(B).
motions

for

summary

Both the plaintiff and the defendant filed
judgment.

After

consideration

of

those

motions, the magistrate judge entered a report and recommendation
recommending that the defendant’s motion for summary judgment be
denied, that the plaintiff’s motion for summary judgment be granted
in part, and that this action be remanded to the Commissioner for
further action. 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

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must file written objections within fourteen days after being
served with a copy of the report.

The magistrate judge further

informed the parties that failure to timely object would result in
a waiver of the right to appeal a judgment resulting from the
report and recommendation.
II.

The defendant did not file objections.
Applicable Law

As there were no objections filed to the magistrate judge’s
recommendation, his findings and recommendation will be upheld
unless they are “clearly erroneous or contrary to law.”

28 U.S.C.

§ 636(b)(1)(A). Additionally, because no party filed objections to
the report and recommendation, thus, the plaintiff waived her right
to appeal from a judgment of this Court based thereon.

Thomas v.

Arn, 474 U.S. 140, 148-53 (1985).
III.

Discussion

In her motion for summary judgment, the plaintiff points to
four points of error that she believes warrant overturning the
ALJ’s decision, and the defendant has responded to each in turn.
First, the plaintiff asserts that the ALJ failed to discuss how the
evidence supported her conclusions as to the RFC.

In response to

this allegation of error, the defendant contends that there was
substantial evidence to support the ALJ’s RFC assessment.
Next, the plaintiff argues that the ALJ failed to properly
evaluate the opinions of the plaintiff’s treating physicians.

On

the other hand, the defendant argues in response that the ALJ’s

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decision

to

give

little

weight

to

the

plaintiff’s

treating

physicians was supported by substantial evidence.
Third, the plaintiff claims that the ALJ failed to include any
limitation as to the plaintiff’s concentration, persistence, or
pace in the RFC. Lastly, the plaintiff asserts that the ALJ failed
to include any limitations related to the plaintiff’s neck and back
in the RFC.

In rebuttal, the defendant responded that the ALJ

fully considered the effect of the plaintiff’s symptoms on her
concentration, persistence, and pace and any other limitations that
may have effected her RFC.
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)).
issued

a

report

and

recommendation,

Magistrate Judge Kaull
in

which

he

held

that

substantial evidence exists to support the ALJ’s conclusions as to
how the plaintiff’s symptoms affect her concentration, persistence,
and

pace.

However,

the

magistrate

judge

further

held

that

substantial evidence did not exist to support the ALJ’s other
contested conclusions.
The magistrate judge first found that the ALJ did consider the
plaintiff’s symptoms in relation to her concentration, persistence,

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and pace.
previous

The magistrate judge found that the ALJ considered the
ALJ’s

findings1

and

the

reports

of

the

consultative

psychologists which both considered the plaintiff’s concentration,
persistence, and pace.

Considering this evidence, the ALJ found

that limitations existed but that the plaintiff could still perform
simple, repetitive work with a Specific Vocational Preparation
(“SVP”) of no more than 2.

The magistrate judge found that this

was a sufficient application of the evidence.
The

magistrate

judge

next

found

that

the

ALJ

did

not

sufficiently articulate reasons for assigning little weight to the
plaintiff’s treating physicians.

The magistrate judge noted that

the ALJ did discuss the consistency of their opinions with the
record but did so in a summary fashion without referencing the
actual evidence that the opinions were inconsistent with.

Thus,

the magistrate judge reasoned that even if the treating physicians’
opinions

were

entitled

to

little

weight,

the

ALJ

did

not

sufficiently articulate why such weight should not be given.
Further, the magistrate judge found that the ALJ did not
sufficiently articulate reasons for assigning “some weight” to two
state agency physicians, Dr. Lateef and Dr. Lim.

The ALJ had

stated that these physicians considered all of the medical evidence
and found that the plaintiff was limited to less than a full range

1

The plaintiff had previously filed an application seeking
benefits.
An administrative hearing was held regarding that
application in 2010 and the plaintiff’s benefits were denied.
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of light work.

The magistrate judge, however, found that this was

not an accurate finding because the physicians had completed their
reviews in December 2011 and February 2012 and the plaintiff
continued to receive treatment for back pain after those time
periods.

Thus, the magistrate judge found that the ALJ’s finding

did not permit meaningful judicial review.

As such, based on the

ALJ’s accordance of weight to the treating physicians versus the
two state agency physicians, the magistrate judge found that the
ALJ’s assessment of the plaintiff’s RFC is not supported by
substantial evidence.
The magistrate judge next found that the previous finding also
supports a finding that the ALJ did not provide a sufficient
narrative discussion of how the evidence supported the RFC or
sufficiently

consider

whether

the

plaintiff’s

neck

and

impairments warranted further limitations in her RFC.
party

filed

objections

to

the

magistrate

judge’s

back

Neither

report

and

recommendation.
This Court has reviewed the record, as well as the parties’
motions for summary judgment and, for the reasons set forth in the
report and recommendation and finding no clear error, concurs with
the magistrate judge that the plaintiff’s motion for summary
judgment

should

be

denied

in

part

and

granted

in

part.

Accordingly, the magistrate judge’s report and recommendation is
affirmed and adopted.

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IV.

Conclusion

For the reasons set forth above, this Court finds that the
magistrate judge’s recommendation is not clearly erroneous and
hereby AFFIRMS and ADOPTS the report and recommendation of the
magistrate judge.

The defendant’s motion for summary judgment is

DENIED, and the plaintiff’s motion for summary judgment is GRANTED
IN PART and DENIED IN PART.

It is further ORDERED that this case

be REMANDED to the Commissioner for further action in accordance
with this order.
IT IS SO ORDERED.
The Clerk is directed to transmit a copy of this order to
counsel of record herein.

Pursuant to Federal Rule of Civil

Procedure 58, the Clerk is directed to enter judgment on this
matter.
IT IS SO ORDERED.
DATED:

April 1, 2014

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

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