Bess v. Commissioner Of Social Security Administration

Filing 19

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AS FRAMED, GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT,AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT: Denying 12 Plaintiff's Motion for Summary Judgment; Granting 13 Defendant's Motion for Summary Judgment; Adopting 15 Report and Recommendations. Case to be Dismissed with Prejudice and Stricken from active docket of this Court. Clerk directed to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 9/3/14. (soa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KIMBERLY BESS,
Plaintiff,
v.

Civil Action No. 5:13CV103
(STAMP)

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE AS FRAMED,
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, claiming that he suffered from disability beginning March 3,
2006.

The plaintiff’s underlying claims allege that

she is

disabled due to arthritis; headaches; neck and back problems; a
knee injury; and issues with her legs, hips, and arms.
was denied both initially and upon reconsideration.

Her claim

The plaintiff

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

and

was

represented

At this hearing, the plaintiff
by

vocational expert offered testimony.

counsel.

Additionally,

a

The ALJ 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.
decision

The Appeals Council denied review, and the ALJ’s

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.

This Court then directed the defendant to file a

response to the plaintiff’s objections.
II.

Facts

In his order, the ALJ found that the plaintiff did not meet
the criteria for any listing that would allow her to obtain the
benefits she was seeking, but instead found that the plaintiff had

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a residual functional capacity to perform a range of activity.
Further, the ALJ found that the plaintiff had severe impairments
which included arthritis, degenerative disc disease, a remote
meniscus tear, post operative pain which restricted her range of
motion, carpal tunnel syndrom, and obesity.
the

claimant

also

hyperlipidemia,
disease,

and

had

high

the

following

cholesterol,

depression.

The

ALJ

a

The ALJ found that

non-severe

fatty

found

impairments:

liver,

that

acid

because

reflux
of

her

impairments, the plaintiff could not perform her past relevant work
of replacing fire alarms.
In her motion for summary judgment, the plaintiff argues that:
(1)

the

ALJ

failed

to

consider

her

alleged

diagnosis

of

fibromyalgia and thus her RFC classification was improper, and (2)
the ALJ erroneously assessed her credibility.

The commissioner

also filed a motion for summary judgment, in which she argues that
the ALJ properly considered the alleged fibromyalgia and accurately
assessed the plaintiff’s RFC and credibility.
In his report and recommendation, the magistrate judge finds
that

the

ALJ

fibromyalgia.

correctly

considered

the

plaintiff’s

alleged

The ALJ found that the only evidence that can be

reviewed is evidence that existed prior to the date last insured
(“DLI”), which in this case was December 31, 2011.

Thus, the

magistrate judge found that the ALJ correctly found that the
diagnosis of fibromyalgia on February 29, 2012 could not be used in

3

the ALJ’s analysis.

The magistrate judge thus reasoned that the

ALJ’s conclusion, based on his observations that the plaintiff had
been improving from mid-2006 to 2011, as to the RFC was reasonably
based on sufficient evidence.
As to the determination of the plaintiff’s credibility, the
magistrate

judge

found

that

the

ALJ

correctly

evaluated

the

plaintiff’s symptoms in accordance with the Craig test and social
security factors.

The ALJ found that the plaintiff had medically

determinable impairments that could reasonably cause some of her
alleged symptoms. However, the ALJ then found that the plaintiff’s
statements are not credible as they are inconsistent with the
medical evidence of record as to the severity of the impairments.
The magistrate judge found that there was substantial evidence to
support either side and thus the ALJ’s decision was not “patently
wrong” and could be upheld.
The plaintiff makes three objections to the magistrate judge’s
report and recommendation. The plaintiff first objects to the ALJ
and magistrate judge’s misapplication of the law of the United
States

Court

of

Appeals

for

the

Fourth

Circuit

in

Bird

v.

Commissioner of Social Sec. Admin., 699 F.3d 337 (4th Cir. 2012),
which holds that an ALJ can consider retroactive evidence.

The

plaintiff

the

asserts

that

the

ALJ

should

have

considered

fibromyalgia diagnosis as that evidence permitted an inference of
linkage with the plaintiff's pre-date of last insured (pre-DLI)

4

impairments.

As such, the plaintiff argues that the longitudinal

record of the plaintiff's symptoms was important in this case as
those symptoms eventually resulted in a diagnosis of fibromyalgia.
Next, the plaintiff contends that the ALJ improperly considered the
plaintiff's

credibility

because

he

did

not

reference

her

fibromyalgia while considering her symptoms. The plaintiff asserts
that

the

fibromyalgia

plaintiff's

statements

diagnosis
as

to

the

lends

credibility

severity

of

her

to

the

symptoms.

Finally, the plaintiff argues that even without the consideration
of the fibromyalgia, there was not sufficient evidence to deny the
plaintiff's benefits because of her severe multi-level spinal
impairments.
After

receiving

the

plaintiff’s

objections,

this

Court

directed the defendant to respond to the plaintiff’s objections as
the applicability of Bird had not been raised previously.

In the

defendant’s response, she first argues that the ALJ properly
considered plaintiff’s alleged fibromyalgia by comparing pre-DLI
and post-DLI evidence.

The defendant asserts that the ALJ found

that there was a lack of pre-DLI evidence to support a finding that
the alleged impairment was present pre-DLI as the plaintiff had a
period of improvement throughout 2010 and 2011.

In this vein, the

defendant states that she respectfully disagrees with the report
and recommendation.

Further, the defendant contends that the

report and recommendation correctly upheld the ALJ’s credibility

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finding.

The

defendant

asserts

that

the

ALJ

evaluated

the

plaintiff’s symptoms in accordance with the controlling regulations
and standards.
For the reasons set forth below, this Court finds that the
report

and

recommendation

of

the

magistrate

judge

should

be

affirmed and adopted as framed.
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 the
report and recommendation.
IV.

Discussion

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.
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)).

6

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.

Consideration of Fibromyalgia
Post-DLI medical evidence may be retroactively considered by

an ALJ if “that evidence permits an inference of linkage with the
claimant’s pre-DLI condition.” Bird, 669 F.3d at 340-41.

For

instance, in Bird, the plaintiff had been diagnosed with posttraumatic stress disorder (“PTSD”) after his DLI but not pre-DLI.
Id. at 340.

Post-DLI, the plaintiff was evaluated through the

Department of Veteran Affairs (“VA”) and diagnosed as having PTSD
that caused a “severe level of impairment.” Id.

However, the ALJ

found that his PTSD was insufficiently severe to qualify him for
disability benefits. Id. In making this finding, the ALJ reasoned
that

there

was

not

enough

evidence

to

support

a

finding

of

disability because the VA rating decision had occurred after the
plaintiff’s DLI. Id.

On appeal, the Fourth Circuit found that the

ALJ should have considered retroactive post-DLI evidence as the
plaintiff’s VA diagnosis related to his history of impairment. Id.
The plaintiff asserts in her objections that the magistrate
judge incorrectly found that the ALJ did not need to consider the
post-DLI diagnosis of fibromyalgia.

7

Further, the plaintiff argues

that even without the diagnosis of fibromyalgia, there was enough
evidence to support a finding that the plaintiff was eligible for
benefits.

The defendant asserts that the ALJ considered the post-

DLI fibromyalgia diagnosis but found that given the improvements in
the period beforehand, the plaintiff was not eligible for benefits.
As

stated

previously,

the

magistrate

judge

upheld

the

ALJ’s

decision finding that the ALJ only needed to consider the pre-DLI
evidence.
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). However, “in 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)).

As

such,

even

if

the

magistrate

judge

incorrectly considered the reasoning offered by the ALJ, this Court
must uphold the finding of the report and recommendation if the
result is correct.
Contrary to the magistrate judge’s finding, an ALJ should
consider
inference

any
of

post-DLI
linkage

evidence
with

the

that

would

plaintiff’s

However, in this case, the ALJ did so.

have

permitted

pre-DLI

an

condition.

Specifically, the ALj

considered Dr. Saikali’s (the treating physician who diagnosed
fibromyalgia) report. See ECF No. 7-2 at 29.

8

The ALJ noted that

Dr. Saikali “made reference to ‘fibromyalgia’ in a letter of
February 29, 2012 . . . but his notes and information contained in
the medical evidence of record do not offer objective findings
consistent with such a diagnosis which requires objective clinical
findings . . . .” Id.

Further, the ALJ states that Dr. Saikali

references other possible causes for the plaintiff’s symptoms other
than fibromyalgia.

Thus, although the report and recommendation

incorrectly considered the ALJ’s reasoning, it is clear that the
ALJ correctly considered Dr. Saikali’s report and his reference to
fibromyalgia.
Moreover,
impairments.

the

ALJ

considered

the

plaintiff’s

spinal

The ALJ took into account the medical evidence

supporting a spinal impairment, noting the plaintiff’s complaints
of chronic neck and back pain, her course of physical therapy, and
the plaintiff’s cervical spine surgery.

Id. at 28.

However, the

ALJ found that the plaintiff’s improvements during the applicable
time period weighed against a finding that she was eligible for
benefits.

Id.

Additionally, the ALJ did indicate that the

plaintiff had “some degree of impairments that are likely to impose
some limitations on her functioning” but that her treatment history
failed to demonstrate the degree of severity she had alleged. Id.
at 29.
The ALJ thus made a determination, based on the physicians’
reports and other evidence on the record, which a “‘reasonable mind

9

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.’”

findings

from

being

supported

by

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

As

such, this Court finds that there is substantial evidence to uphold
the ALJ’s finding and thus the plaintiff’s objections as to the
ALJ’s consideration of her fibromyalgia and spinal impairments are
overruled.
B.

Credibility
The ALJ applied the two part test set forth in Craig v.

Chater, 76 F.3d 585, 594-95 (4th Cir. 1996), in determining the
status of the plaintiff:
[1] [F]or pain to be found to be disabling, there must
be shown a medically determinable impairment which could
reasonably be expected to cause not just pain, or some
pain, or pain of some kind or severity, but the pain the
claimant alleges she suffers.
The regulation thus
requires at the threshold a showing by objective evidence
of the existence of a medical impairment “which could
reasonably be expected to produce” the actual pain, in
the amount and degree, alleged by the claimant.
(citations omitted).
[2] It is only after a claimant has met her threshold
obligation of showing by objective medical evidence a
medical impairment reasonably likely to cause the pain
claimed, that the intensity and persistence of the
claimant’s pain, and the extent to which it affects her
ability to work, must be evaluated.
See 20 C.F.R.
§§
416.929(c)(1)
&
404.1529(c)(1).
Under
the
regulations, this evaluation must take into account not
only the claimant’s statements about her pain, but also
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“all the available evidence,” including the claimant’s
medical history, medical signs, and laboratory findings,
see id.; any objective medical evidence of pain (such as
evidence of reduced joint motion, muscle spasms,
deteriorating tissues, redness, etc.), see 20 C.F.R.
§§ 416.929(c)(2) & 404.1529(c)(2); and any other evidence
relevant to the severity of the impairment, such as
evidence of the claimant’s daily activities, specific
descriptions of the pain, and any medical treatment taken
to alleviate it, see 20 C.F.R. §§ 416.929(c)(3) &
404.1529(c)(3).
The ALJ found that the alleged medical impairments the plaintiff
See ECF

complained of could cause some of the alleged symptoms.
No. 7-2 at 26.

Thus, he moved to the second step and found that

the plaintiff could not meet that requirement.

The ALJ considered

the plaintiff’s testimony at the hearing, the plaintiff’s function
report, and also the medical evidence of the record as to the
plaintiff’s physical impairments.

Id.

In considering the plaintiff’s impairments, the ALJ also
considered

the

plaintiff’s

allegations

and

compared

those

allegations to the plaintiff’s testimony at the hearing and the
medical evidence provided in the reports.

The ALJ considered the

plaintiff’s responses and found that they were inconsistent with
the

symptoms

assessment.

reported

in

the

medical

records

and

the

RFC

To reiterate, this Court may not overturn an ALJ’s

decision simply because two inconsistent conclusions may be drawn
from

the

same

evidence.

In

this

action,

the

ALJ

correctly

considered the plaintiff’s function report; her testimony; and the
medical evidence of record, including post-DLI evidence.
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Thus,

this Court finds that there was substantial evidence to support the
ALJ’s determination of the plaintiff’s credibility and thus her
objections to that determination are overruled.
V.

Conclusion

Based upon a de novo review of the findings of the report and
recommendation that were objected to by the plaintiff this Court
AFFIRMS and ADOPTS AS FRAMED 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. 13) is GRANTED and the plaintiff’s motion for summary
judgment (ECF No. 12) 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:

September 3, 2014
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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