Clatterbuck v. Commissioner Of Social Security Administration
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 12 THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION. The 9 Plaintiff's Motion for Judgment is DENIED and the 10 Defendant's Motion for Summary Judgment is GRANTED. It is ORDE RED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. Because the plaintiff failed to object to the report and recommendation, she has waived her right to seek appellate review of this matter. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 1/7/2015. (copy to counsel of record via CM/ECF) (nmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
PATTI S. CLATTERBUCK,
Civil Action No. 5:14CV43
COMMISSIONER OF SOCIAL SECURITY,
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING THE
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
In this civil action, the plaintiff, a fifty-four year old
woman, was diagnosed by her doctor, Dr. Romulo J.
Estigoy, with a
number of medical issues. Her ailments include obesity, arthritis,
pre-diabetes, fibromyalgia, hypertension, migraines, depression,
maintained limitations in her ability to reach, walk, and feel. The
ALJ, using the five step analysis under 20 CFR § 404.1520 (2000),
found that the plaintiff was not disabled under the Social Security
Act and thus denied the plaintiff’s claim for disability insurance
benefits (“DIB”). The parties each filed motions for summary
judgment. ECF Nos 9 and 10. The plaintiff contends that the ALJ
failed to apply Social Security Ruling (“SSR”) 12-2p to find that
impairment. However, the defendant argues that the ALJ properly
analyzed the plaintiff’s fibromyalgia.
recommendation recommending that this Court grant the defendant’s
motion for summary judgment and deny the plaintiff’s motion for
summary judgment. ECF No. 12. Specifically, the magistrate judge
pointed out that in order to determine if a claimant’s fibromyalgia
is a medically determinable impairment, the ALJ uses a two step
analysis: (1) whether the plaintiff has a history of widespread
pain that persists for at least three months, and (2) evidence that
any other disorder that could cause the symptoms or signs was
excluded. The magistrate judge, in concurrence with the ALJ, found
that the plaintiff failed
to demonstrate that no other medical
disorder caused her symptoms and signs. For that reason, the
magistrate judge recommended that this Court grant the defendant’s
objections to the report and recommendation. This Court agrees with
the magistrate judge’s report and recommendation, and thus affirms
and adopts it for the reasons below.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
recommendation to which objection is timely made.
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.
As the United States Court of Appeals for the Fourth Circuit
has held, “Under the Social Security Act, [a reviewing court] must
uphold the factual findings of the Secretary if they are supported
by substantial evidence and were reached through application of the
correct legal standard.”
Craig v. Chater, 76 F.3d 585, 589 (4th
“Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
credibility determinations in evaluating whether a decision is
supported by substantial evidence; ‘[w]here conflicting evidence
allows reasonable minds to differ,’ we defer to the Commissioner’s
Thompson v. Astrue, 442 F. App’x 804, 805 (4th Cir.
2011) (quoting Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir.
Further, as the Supreme Court of the United States stated
in U.S. v. U.S. Gypsum Co., “a finding is ‘clearly erroneous’ when
although there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm conviction
that a mistake has been committed.” 333 U.S. 364, 395. After
reviewing the record before this Court, no clearly erroneous
As stated earlier, the plaintiff claims that the ALJ failed to
properly consider her fibromyalgia pursuant to SSR 12-2p. Under SSR
12-2p, an ALJ is to consider certain evidence in order to determine
fibromyalgia. In particular, such an impairment can be established
not only by a physician’s diagnosis, but also the following:
The evidence must document that the physician reviewed
the person's medical history and conducted a physical
exam. We will review the physician's treatment notes to
see if they are consistent with the diagnosis of FM,
determine whether the person's symptoms have improved,
worsened, or remained stable over time, and establish the
physician's assessment over time of the person's physical
strength and functional abilities.
SSR 12-2p, 2012 WL 3104869 at *2. Further, SSR 12-2p provides
certain criteria that are used when determining whether a person
has a medically determinable impairment of fibromyalgia. That
widespread pain, and (2) evidence that “other disorders that could
cause the symptoms or signs were excluded.” Id. at *3. The second
requirement is currently at issue.
The magistrate judge correctly determined that the plaintiff
fails to satisfy that requirement. The record indicates that the
plaintiff suffered from a host of maladies that could have caused
her widespread pain, including lower back pain, osteoporosis, and
osteoarthritis. Further, as the magistrate judge indicates, the
plaintiff’s numerous visits with medical professionals did not
consistently result in a diagnosis of fibromyalgia. That further
supports the fact that all other disorders were not excluded. As
the record shows, Dr. Estigoy did not consistently diagnose the
plaintiff with fibromyalgia. The lack of consistency in diagnoses
as well as the failure to exclude other disorders means that the
second requirement is not satisfied. Therefore, the plaintiff does
not meet the requirements set forth in SSR 12-2p. Because of that,
this Court finds no mistake in the magistrate judge’s report and
recommendation, meaning that no clear error exists in this case.
Accordingly, the magistrate judge’s report and recommendation is
affirmed and adopted.
For the reasons above, the magistrate judge’s report and
defendant’s motion for summary judgment is GRANTED.
It is ORDERED
that this civil action be DISMISSED and STRICKEN from the active
docket of this Court.
Finally, this Court finds that the parties were 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, she has waived her 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 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.
January 7, 2015
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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