Carson v. Commissioner Of Social Security Administration
Filing
15
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE: This Court finds that the magistrate judges recommendation is not clearly erroneous and hereby AFFIRMS and ADOPTS the 14 report and recommendation o f the magistrate judge. The parties 10 AND 11 motions for summary judgment are DENIED. It is further ORDERED that this case be REMANDED to the Commissioner for further action in accordance with this order. The Clerk is directed to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr on 3/2/2015. (kac)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CARLA JEAN CARSON,
Plaintiff,
v.
Civil Action No. 5:14CV51
(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, Carla Jean Carson, filed an application for
Supplemental Security Income (“SSI”) under Title II and Title XVI
of the Social Security Act.
alleged
disability
since
In the application, the plaintiff
February
4,
2005
due
to
chronic
obstructive pulmonary disease (“COPD”), reduced visual acuity,
degenerative disc disease of the cervical and lumbar spines,
allergies, several additional physical impairments, and three
mental impairments.
This was the plaintiff’s third application,
the plaintiff had previously been denied benefits in 2006 and 2011.
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 represented by
counsel.
At the hearing, the plaintiff 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 medium work with exceptions.
Further, the ALJ
found that the plaintiff was unable to perform any past relevant
work.
However, the ALJ found that there were jobs in the national
economy that the plaintiff could perform.
benefits were again denied.
Thus, the plaintiff’s
The plaintiff then timely filed an
appeal of the decision 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
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 both parties’ motions for summary judgment be
denied, and that this action be remanded to the Commissioner for
further action.
Upon submitting his report, Magistrate Judge
Seibert 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 14 days after
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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.
II.
Neither party filed objections.
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, the parties waived their right to
appeal from a judgment of this Court based thereon. Thomas v. Arn,
474 U.S. 140, 148-53 (1985).
III.
Discussion
In her motion for summary judgment, the plaintiff points to
two points of error that she believes warrant overturning the ALJ’s
decision, and the defendant has responded to each in turn.
First,
the plaintiff asserts that the ALJ’s analysis under step three was
insufficient.
In response to this allegation of error, the
defendant contends that there was substantial evidence to support
the ALJ’s analysis and any failure by the ALJ to articulate is
harmless.
Next, the plaintiff argues that the ALJ’s step two finding
that plaintiff’s three diagnosed mental impairments did not amount
to a severe impairment was reversible error as the ALJ failed to
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sufficiently develop the reasoning for that finding.
On the other
hand, the defendant argues in response that the ALJ’s decision that
the mental impairments were non-severe was supported by substantial
evidence and further development by the ALJ was discretionary.
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)).
issued
a
report
and
recommendation,
Magistrate Judge Seibert
in
which
he
held
that
substantial evidence exists to support the ALJ’s conclusions as to
the analysis at step three.
However, the magistrate judge held
that substantial evidence did not exist to support the ALJ’s other
contested conclusion.
The magistrate judge first found that the ALJ did not “skip”
the third step of the sequential analysis as the plaintiff alleged
in her motion for summary judgment pursuant to Hair v. Astrue, No.
5:10-cv-309-D, 2011 WL 2681537 (E.D.N.C. June 16, 2011).
The
magistrate judge found that the ALJ considered the plaintiff’s
degenerative disc disease as severe in step two and thus, it
appeared that the ALJ considered that disease in the third step as
well.
Thus, the magistrate judge found that the ALJ had not
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“skipped” step three. However, the magistrate judge found that the
ALJ failed to sufficiently explain his analysis at step three.
The
magistrate
judge
next
found
that
the
ALJ
did
not
sufficiently articulate his comparison of relevant listed severity
criteria, under 20 C.F.R. pt. 404, subpt. P, App. 1, to the
plaintiff’s symptoms.
The magistrate judge found that there was
factual
the
support
that
plaintiff’s
symptoms
met
a
listed
impairment under the muscoskeletal listings and that the ALJ’s
opinion simply stated that the ALJ had “appropriately evaluated”
the applicability of those listings along with others.
However,
the magistrate judge found that without further explanation, the
ALJ’s finding was insufficient.
Next, the magistrate judge found that the ALJ’s conclusions as
to
the
severity
of
the
plaintiff’s
mental
impairments
were
supported by substantial evidence. The magistrate judge found that
the ALJ had relied on the plaintiff’s treating psychologist’s
report and a psychiatric review technique completed by Dr. Bob
Marinelli.
The treating physician had reported mild to moderate
deficiencies and Dr. Marinelli had reported mild limitations.
Additionally, the magistrate judge found that it was within the
ALJ’s discretion to refer or not refer the plaintiff for additional
medical examinations. Accordingly, the magistrate judge found that
the ALJ had sufficiently completed the second step of his analysis
and that there was substantial evidence to support his finding.
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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 and finding no clear error, concurs with
the magistrate judge that the parties’ motions for summary judgment
should be denied and the case be remanded solely for the ALJ, at
step three of the five-step evaluation process, to compare each fo
the listed criteria in the ALJ’s June 27, 2013 decision to the
evidence of the plaintiff’s symptoms.
Accordingly, the magistrate
judge’s report and recommendation is affirmed and adopted in its
entirety.
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.
DENIED.
The parties’ motions for summary judgment are
It is further ORDERED that this case be REMANDED to the
Commissioner for further action in accordance with this order.
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.
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DATED:
March 2, 2015
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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