Pierce v. Commissioner of Social Security
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 17 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE. The defendants 14 motion for summary judgment is GRANTED, and the plaintiffs 13 motion for summary judgment is DENIED. The decision of the C ommissioner is hereby AFFIRMED. It is further ORDERED that this case be DISMISSED WITH PREJUDICE and STRICKEN from the active docket of this Court. The plaintiff has failed to object and has waived his right to seek appellate review of this matter. The Clerk is DIRECTED to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr. on 1/9/2015. (copy to counsel of record via CM/ECF) (nmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
RODNEY D. PIERCE,
Civil Action No. 5:14CV37
CAROLYN W. COLVIN,
of Social Security,
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
The plaintiff, Rodney D. Pierce, filed an application for
Disability Insurance Benefits (“DIB”) under Title II of the Social
Security Act and Supplemental Security Income (“SSI”) under Title
XVI of the Social Security Act.
The plaintiff’s first claims were
denied on all administrative levels.
In second application, the
plaintiff reapplied for DIB and SSI and alleged disability since
osteoarthritis, and acid reflux.
The Social Security Administration denied the plaintiff’s
requested a hearing before an Administrative Law Judge (“ALJ”), and
a hearing was held at which the plaintiff was represented by
The plaintiff’s benefits were again denied.
The plaintiff, represented by counsel, testified on his 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.
impairments were severe, either individually or in combination,
which included a mood disorder associated with his dermatomyositis
findings, the ALJ found that those mental impairments were not
independently severe. Finally, the ALJ found that the plaintiff is
capable of performing jobs that exits in significant numbers in the
Thereafter, the plaintiff appealed 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
pursuant to 28 U.S.C. § 636(b)(1)(B).
Both the plaintiff and the
defendant filed motions for summary judgment.
plaintiff filed a reply to the defendant’s motion for summary
After consideration of those motions, the magistrate
judge entered a report and recommendation recommending that the
defendant’s motion for summary judgment be granted, that the
plaintiff’s motion for summary judgment be denied, and that the
ruling of the Commissioner be affirmed.
Upon submitting his
report, Magistrate Judge Trumble 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 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.
party filed objections.
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.”
§ 636(b)(1)(A). Additionally, because no party filed objections to
the report and recommendation, thus, the plaintiff waived his right
to appeal from a judgment of this Court based thereon.
Arn, 474 U.S. 140, 148-53 (1985).
The plaintiff points to a narrow point of error that he
believes warrants overturning the ALJ’s decision.
asserts that the ALJ erroneously determined that the plaintiff’s
mental impairment was severe and not severe at step two of the
sequential evaluation process. The plaintiff argues that the ALJ’s
findings are thus contradictory and remand is warranted.
In her motion for summary judgment, the defendant contends
that the ALJ did not err in finding that plaintiff’s medically
determinable mental impairments were not “independently” severe.
The defendant argues that the ALJ considered the plaintiff’s mental
impairments and in finding at least one severe impairment, the ALJ
then proceeded to the next step of the process to find that no
material deficiency existed at that step.
In his reply, the
plaintiff reiterates his arguments from his motion for summary
An ALJ’s findings will be upheld if supported by substantial
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.’”
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
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 Trumble issued a
report and recommendation, in which he held that substantial
evidence exists to support the ALJ’s conclusions.
The Social Security Administration uses a five-step sequential
evaluation process to determine if a claimant is disabled.
C.F.R. §§ 404.1520; 416.920 (2011).
In this case, the plaintiff’s
allegation of error is based on step two and step three which
At the second step, we consider the medical
severity of your impairment(s). If you do not have a
severe medically determinable physical or mental
impairment that meets the duration requirement . . . or
a combination of impairments that is severe and meets the
duration requirement, we will find that you are not
(iii) At the third step, we also consider the medical
severity of your impairment(s). If you have an
impairment(s) that meets or equals one of our listings
. . . and meets the duration requirement, we will find
that you are disabled.
addressing the plaintiff’s assignment of error based on the two
steps addressed above.
The magistrate judge first found that the
ALJ’s finding that the plaintiff’s mental impairments were severe
in one sentence of his opinion was harmless error as his findings
The magistrate judge made this finding based on the
psychological evaluation which included diagnoses for mood and
anxiety-related disorders and the psychologist’s finding; (2) the
independent affect that the disorders had on the plaintiff and the
limitations that caused; (3) the prior ALJ’s opinion from the
plaintiff’s original application for benefits; and (4) the 2013
assessments of state agency psychological consultants who had both
found the plaintiff’s mental impairments to be not severe.
the magistrate judge found that the ALJ’s finding at step two of
the sequential process that the plaintiff’s mental impairments were
“mild” was supported by substantial evidence.
Next, the magistrate judge found that the ALJ did not err in
not specifically mentioning a mental impairment listing at step
three of the sequential process.
The magistrate judge found that
because the ALJ concluded at step two that the plaintiff’s mental
impairments were “mild,” he was not required to determine whether
the impairment met or equaled a listed mental disorder at step
Further, the magistrate judge found that the plaintiff has
failed to carry his burden of showing that his mental impairments
met or equaled one of the listed mental disorders.
As such, the
magistrate judge found that substantial evidence supported the
ALJ’s finding at step three.
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 the plaintiff’s reply, and for the
reasons set forth in the report and recommendation, concurs with
the magistrate judge that 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.
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
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.
Finally, 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 would result in a
waiver of appellate rights.
Because the plaintiff has failed to
object, he has waived his right to seek appellate review of this
See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir.
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
IT IS SO ORDERED.
January 9, 2015
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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