Schartiger v. Commissioner of Social Security

Filing 13

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMNDATION OF MAGISTRATE JUDGE: re 12 REPORT AND RECOMMENDATIONS re 7 MOTION for Summary Judgment filed by Elisha Schartiger, and 10 MOTION for Summary Judgment filed by Commissioner of Social Security: Affirming and Adopting 12 Report and Recommendation; Denying 7 MOTION for Summary Judgment filed by Elisha Schartiger, and Granting 10 MOTION for Summary Judgment filed by Commissioner of Social Security ; 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 3/18/14. (soa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ELISHA SCHARTIGER,
Plaintiff,
v.

Civil Action No. 5:13CV71
(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
Disability Insurance Benefits (“DIB”) under Title II of the Social
Security Act and Supplemental Security Income (“SSI”).

In the

application, the plaintiff alleged disability since October 15,
2007 because of back problems, rheumatoid arthritis, depression,
diabetes, high blood pressure, tendinitis, lumbar sprain, and
obesity.
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 not represented by
counsel.

The plaintiff’s benefits were again denied.

Thereafter,

the plaintiff appealed to the Appeals Council, however, she filed
a second DIB claim in 2010 before the Appeals Council had made a

decision on the initial denial.

The Appeals Council remanded the

case to the ALJ for a second hearing.
The plaintiff, represented by counsel, 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 sedentary work except she
can perform reaching, handling, and fingering.

Further, the ALJ

found that the plaintiff’s depressive symptoms were not severe,
although the ALJ had found that the plaintiff’s mental impairments
were severe at the first hearing.

Finally, the ALJ found that the

plaintiff could perform her previous work as telemarketer or, in
the alternative, that the plaintiff is capable of making an
adjustment to work that exits in significant numbers in the
national economy.

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 James E. Seibert 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

2

granted, that the plaintiff’s motion for summary judgment be
denied, and that the ruling of the Commissioner be affirmed.
submitting

his

report,

Magistrate

Judge

Seibert

informed

Upon
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 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.

The plaintiff did not file objections.
II.

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

The plaintiff points to three points of error that she
believes warrant overturning the ALJ’s decision, and the defendant
has responded to each in turn.
the

ALJ

erroneously

First, the plaintiff asserts that

determined

impairment was not severe.

that

the

plaintiff’s

mental

The plaintiff argues that the ALJ

3

failed

to

consider

a

consultative

report

that

diagnosed

the

plaintiff with borderline intellectual functioning and also failed
to consider the combination fo the plaintiff’s mental impairments.
In response to this allegation of error, the defendant contends
that a combination of impairments can still be considered nonsevere
if it does not significantly limit a claimant’s physical or mental
abilities to do basic work activities, as in this case.

Further,

the defendant asserts that there is substantial evidence that
supports the ALJ’s finding that the plaintiff did not have a severe
mental impairment even when a combination of impairments was
considered. The defendant argues that the ALJ considered the whole
record, including the consultative report, and that contrary to the
plaintiff’s assertions, the record supported a finding that the
plaintiff had not presented valid evidence demonstrating that her
alleged mental impairments affected her ability to perform basic
work activities.
Next, the plaintiff argues that the ALJ erroneously assessed
the

plaintiff’s

residual

functional

capacity

(“RFC”).

The

plaintiff contends that the ALJ failed to consider the plaintiff’s
need for a handheld assistive device and the plaintiff’s diagnosis
of carpal tunnel syndrome and sero-negative arthritis upon her
ability to handle and finger objects.

Additionally, the plaintiff

asserts that the ALJ incorrectly evaluated the report of the
consultative examiner, Dr. Monderewicz, that the plaintiff had a

4

limited ability to sit and stand for prolonged periods and was
limited in her ability to walk, bend, squat, kneel, crawl, lift,
and carry.

Finally, the plaintiff contends that the ALJ failed to

properly evaluate the opinions of her treating physician and
instead wholly dismissed the physician’s opinions without reason.
On the other hand, the defendant argues in response that the
ALJ was not required to include the plaintiff’s need for a handheld
device

because

the

ALJ

correctly

found

that

the

plaintiff’s

allegation that she had frequent falls was not supported by the
record as a whole.

The defendant contends that the ALJ correctly

noted that x-rays taken when the plaintiff alleged injuries did not
show the complained of injuries, the plaintiff asserted that she
was

exercising

daily,

and

that

the

state

recommended a light level of exertion RFC.

agency

physicians

Second, the defendant

contends that contrary to the plaintiff’s assertion, the ALJ did
consider

both

Dr.

Monderewicz’s

and

the

treating

physician’s

reports but given the rest of the record gave the reports little
weight.
Finally,

the

plaintiff

claims

that

the

ALJ

erroneously

determined that the plaintiff was capable of performing her past
relevant work as a telemarketer because it does not qualify as
“past relevant work” under 20 C.F.R. § 404.1565(a) (2013).

The

plaintiff

the

asserts

that

because

the

record

reflects

that

plaintiff only worked as a telemarketer for a very short period of

5

time, there was not substantial evidence to support the ALJ’s
finding.

In rebuttal, the defendant responded that even if the

plaintiff’s telemarketer job was incorrectly considered, the ALJ
correctly found that the plaintiff’s RFC was such that she could
perform semi-skilled sedentary work and that there was other
alternative work available in the national economy.
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. Mutual Mining, Inc., 80

F.3d 110, 113 (4th Cir. 1996) (quoting Consolo v. Fed. Mar. Comm’n,
383 U.S. 607, 620 (1966)).

Magistrate Judge Seibert issued a

report and recommendation, in which he held that substantial
evidence exists to support the ALJ’s conclusions.
The

magistrate

judge

reviewed

the

ALJ’s

discussion

by

addressing each of the plaintiff’s three assignments of error. The
magistrate judge first found that the ALJ’s finding that the
plaintiff’s mental impairments were not severe was supported by
substantial evidence. The magistrate judge made this finding based

6

on the ALJ’s consideration of (1) the different evidence provided
in the record between the first hearing and second hearing showing
a

“significantly

psychologist’s

greater

mental

consultative

capacity;”

report

which

(2)

the

stated

treating
that

the

plaintiff’s mental impairments were mildly severe; (3) the evidence
on the record of the plaintiff’s mental capacity which did not
support

the

treating

psychologist’s

findings;

plaintiff’s alleged mental impairments.

and

(4)

the

Further, the magistrate

judge found that the ALJ correctly considered these elements in
crafting the RFC and in determining that the state psychological
findings were consistent with the record whereas the treating
psychologist’s report should be rejected.
Next, the magistrate judge found that the ALJ did not err in
assessing the plaintiff’s RFC.

First, the magistrate judge noted

that the ALJ considered the plaintiff’s multiple hand impairments
and her need for a handheld assistive device.

However, the ALJ

found that the alleged impairments were not supported by the
evidence and used four pages of evidence from the medical records
to support that conclusion: (1) the plaintiff stated that she
suffered from falls and could not exercise but three months later
told a doctor that she was back at the gym, babysitting, and
getting a newborn in May; (2) she reported numbness and imbalance
to a doctor but during the same appointment she was examined and no
pain, swelling, or weakness was found; (3) while one doctor

7

recommended an assistive device, another expressly stated that the
plaintiff did not require such a device; (4) the plaintiff was
volunteering and applying for jobs; and (5) in 2011, the plaintiff
was reporting that she was more active, trying to become pregnant,
and exercising. The magistrate judge further reported that despite
these inconsistencies, the ALJ still gave the plaintiff a more
limited RFC.
Additionally,

as

to

Dr.

Monderwicz,

the

non-treating

physician, the magistrate judge found that the ALJ sufficiently
considered her report and gave it little weight.

The magistrate

judge determined that the report was based on the plaintiff’s
alleged rheumatoid arthritis and lupus, which was not supported by
the record, and the report did not quantifiably describe the
functional limitations of the plaintiff (such as how many hours the
plaintiff can sit or stand). Thus, the magistrate judge found that
the ALJ’s determination that the report should be given little
weight was supported by substantial evidence.
Further, as to the treating rheumatologist, the magistrate
judge found that the ALJ undertook the correct process and had
substantial evidence to support the finding that his report should
be given little weight.

The magistrate judge notes that the ALJ

went through a lengthy recitation of the medical evidence on the
record, including the evidence provided by the treating physician.
Additionally,

the

ALJ

discussed

8

the

evidence

that

explicitly

contradicted the symptoms that the plaintiff had reported to the
treating physician such as the fact that she denied joint pain,
swelling, and weakness to her neurologist around the same time and
also reported she was kickboxing in 2012.

Finally, the magistrate

judge found that the ALJ did not need to consider the specific
facts in how the ALJ was applying the regulations to her assessment
of the treating physician’s report.

The magistrate judge reasoned

that because all that is required by the regulations is that the
ALJ provide an explanation for the weight she assigns to a medical
opinion, the ALJ sufficiently did so and thus her accordance of
little weight to the treating physician’s report was not in error.
Finally, the magistrate judge found that the plaintiff’s
argument that the ALJ should not have considered her telemarketing
job as prior work she could still perform was without merit.

The

magistrate judge found that because the ALJ had found, in the
alternative, that there were jobs in the national economy that
existed that the plaintiff could perform, the ALJ’s determination
that she could still perform telemarketing was harmless if it was
in error.
The plaintiff did not file objections to the magistrate
judge’s 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, concurs with the magistrate judge that

9

the Commissioner’s decision denying the plaintiff’s application for
Disability Insurance Benefits and Supplemental Security Income is
supported by substantial evidence.

Accordingly, the magistrate

judge’s report and recommendation is affirmed and adopted.
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

GRANTED, and the plaintiff’s motion for summary judgment is DENIED.
The decision of the Commissioner is hereby AFFIRMED. 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 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:

March 18, 2014

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

10