Miller v. Commissioner Of Social Security Administration
Filing
18
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 17 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE. Defendant's 15 Motion for Summary Judgment is GRANTED. Plaintiff's 14 Motion for Summary Judgment is DENIED. This civil action is DISMISSED and STRICKEN from the active docket of this Court. Clerk directed to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 5/9/14. (cc) Modified on 5/9/2014 to correct typo (cc).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
LINDA J. MILLER,
Plaintiff,
v.
Civil Action No. 5:13CV96
(STAMP)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.
Procedural History
The plaintiff, Linda J. Miller, filed an application under
Title XVI of the Social Security Act for Social Security Income
(“SSI”) on February 17, 2011.
In her application, the plaintiff
alleges disability beginning January 11, 2008, due to a heart
condition, stent replacement, chest pain, back pain, and chronic
obstructive pulmonary disease (“COPD”).
The Social Security Administration denied the plaintiff’s
application
initially
and
on
reconsideration.
The
plaintiff
requested a hearing, and a hearing was held on October 10, 2012,
before an administrative law judge (“ALJ”).
At this hearing, the
plaintiff testified on her own behalf, as did a vocational expert
(“VE”).
On October 17, 2012, the ALJ issued a decision finding
that the plaintiff was not disabled and was capable of performing
past relevant work as a fast food cashier.
such
work
does
not
require
the
The ALJ stated that
performance
of
work-related
activities
capacity.
precluded
by
the
claimant’s
residual
functional
The plaintiff appealed the ALJ’s decision.
On July 18,
2013, the Appeals Council upheld the ALJ’s decision in part, but
found that the plaintiff was disabled beginning October 17, 2012.
The plaintiff now appeals the finding that she was not disabled
from February 11, 2011 to October 17, 2012.
The case was referred to United States Magistrate Judge John
S.
Kaull
for
recommendation
submission
for
of
proposed
disposition
findings
pursuant
of
to
fact
28
and
U.S.C.
§ 636(b)(1)(B). Both the plaintiff and the defendant filed motions
for summary judgment.
issued
a
defendant’s
report
motion
On April 7, 2014, the magistrate judge
and
recommendation
for
summary
recommending
judgment
be
plaintiff’s motion for summary judgment denied.
granted
that
the
and
the
Upon submitting
his report and recommendation, 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.
Neither party filed 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
2
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
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)).
In her motion for summary judgment, the plaintiff first
alleges that the ALJ erred in formulating her residual functional
capacity (“RFC”) “by examining each of Plaintiff’s limitations
individually without considering the effect each limitation may
have on the other and in combination with one another.”
Ex. 1 *12-13.
ECF No. 14
The defendant, however, asserts that “the ALJ
considered the combined effect of Plaintiff’s impairments at the
second, third, and fourth steps of the sequential evaluation
process.”
3
An RFC is defined as “the most you can still do despite your
limitations.”
20 C.F.R. § 404.1545(a)(1).
Pursuant to 20 C.F.R.
§ 404.1545, the determination of an RFC must be based upon all
relevant evidence, including descriptions of limitations that go
beyond the symptoms, and observations by treating physicians,
psychologists, family, neighbors, friends, or other persons.
All
of this evidence is considered alongside medical records to allow
the ALJ to form a complete determination of the claimant’s RFC.
After reviewing the ALJ’s opinion, this Court agrees with the
magistrate
judge’s
finding
that
the
ALJ’s
RFC
determination
accounted for all of plaintiff’s functional limitations that were
established in the record.
substantial
evidence
Further, this Court agrees that
supports
the
ALJ’s
evaluation
of
the
plaintiff’s impairments.
The plaintiff next argues that the ALJ erred in his analysis
of the plaintiff’s credibility, as she asserts it was based upon
erroneous fact finding and reasoning.
The defendant, however,
asserts that substantial evidence supports the ALJ’s credibility
finding.
When reviewing an ALJ’s credibility determination as to the
claimant’s subjective complaints, 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
to determine the credibility of the claimant.” Shively v. Heckler,
4
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 “determination of whether a person is disabled by pain or
other symptoms is a two step process.”
Craig v. Chater, 76 F.3d
585, 594 (4th Cir. 1996) (citing 20 C.F.R. §§ 404.1529, 416.929).
The plaintiff must first show “by objective medical evidence a
condition reasonably likely to cause the pain claimed.”
Barnhart, 453 F.3d 559, 564 (4th Cir. 2006).
Hines v.
If the plaintiff
meets her threshold obligation, the plaintiff presents subjective
evidence of “the intensity and persistence of [her] pain, and the
extent to which it affects her ability to work.”
95.
Craig, 76 F.3d at
The plaintiff’s allegations may not be discredited solely
because
there
allegations.
is
Id.
no
objective
evidence
to
substantiate
her
However, the allegations “need not be accepted
to the extent they are inconsistent with the available evidence,
including objective evidence of the underlying impairment, and the
extent to which that impairment can reasonably be expected to cause
the pain the claimant alleges she suffers.”
Id.
This Court finds no clear error in the magistrate judge’s
finding that the ALJ complied with United States Court of Appeals
5
for the Fourth Circuit’s two-step process for determining whether
a person is disabled by pain or other symptoms explained in Craig.
As to the first step in the Craig analysis, neither party disputed
the ALJ’s determination concerning the plaintiff’s credibility as
to
her
symptoms.
While
the
plaintiff
contests
the
ALJ’s
determination as to the second step in the Craig analysis, the
ALJ’s determination complied this step as well.
The ALJ discussed
the plaintiff’s daily activities, location and intensity of her
pain, aggravating factors, and medications and treatment used by
the plaintiff to alleviate her pain.
discussed
the
medical
subjective complaints.
evidence
Further, the ALJ throughly
contradicting
the
plaintiff’s
Thus, based on the ALJ’s discussion of
these facts, substantial evidence supports the ALJ’s credibility
determination concerning the intensity and persistence of the
plaintiff’s pain, and the extent to which it affected her ability
to work.
Lastly, the plaintiff argues that the ALJ failed to consider
that
the
plaintiff
retirement.
met
the
definition
of
a
person
close
to
The plaintiff asserts that the ALJ should have
considered her age at the time of the hearing and found her
disabled. The defendant, however, asserts that the plaintiff’s age
was not relevant in this instance.
This Court finds that the magistrate judge did not err in
finding such argument without merit.
6
The regulations cited by the
plaintiff
concerning
retirement
age
being
an
issue
are
relevant at step five of the sequential evaluation process.
only
See
Gavigan v. Barnhart, 261 F. Supp. 2d 334, 338 (D. Md. 2003).
“Where substantial evidence supports the ALJ’s step four finding
regarding [past relevant work], the ALJ was under no obligation to
proceed to step five of the sequential analysis.”
Cook v. Colvin,
No. 1:11-CV-187, 2014 WL 317847 at *4 (M.D.N.C. Jan. 29, 2014)
(citation omitted).
Here, the ALJ’s finding at step four that the
plaintiff could perform her past relevant work as a fast food
cashier was supported by substantial evidence.
Accordingly, the
ALJ need not have proceeded to step five and taken into account the
regulations cited in support of the plaintiff’s argument.
IV.
Conclusion
Because the parties have not objected to the report and
recommendation,
and
because
this
Court
finds
that
the
recommendation is not clearly erroneous, this Court hereby AFFIRMS
and ADOPTS the magistrate judge’s report and recommendation in its
entirety. For the reasons stated above, the defendant’s motion for
summary judgment is GRANTED and the plaintiff’s motion for summary
judgment is DENIED.
It is further ORDERED that this civil action
be DISMISSED and STRICKEN from the active docket of this Court.
Moreover, this Court finds that the plaintiff was properly
advised by the magistrate judge that failure to timely object to
the report and recommendation in this action will result in a
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waiver of appellate rights.
Thus, the plaintiff’s failure to
object
judge’s
to
the
magistrate
proposed
findings
and
recommendation bars the plaintiff from appealing the judgment of
this Court. See 18 U.S.C. § 636(b)(1); Wright v. Collins, 766 F.2d
841, 845 (4th Cir. 1985); Thomas v. Arn, 474 U.S. 140 (1985).
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:
May 9, 2014
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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