Bentley v. Commissioner Of Social Security Administration

Filing 21

MEMORANDUM OPINION AND ORDER ADOPTING AND AFFIRMING 19 MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, OVERRULING 20 PLAINTIFF'S OBJECTIONS, DENYING 12 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING 16 DEFENDANT'S MOT ION FOR SUMMARY JUDGMENT. It is ORDERED that this civil action be STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 7/22/2016. (copy to counsel via CM/ECF) (nmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
NANCY M. BENTLEY,
Plaintiff,
v.

Civil Action No. 5:15CV79
(STAMP)

CAROLYN W. COLVIN,
Acting Commissioner
of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
ADOPTING AND AFFIRMING MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION, OVERRULING
PLAINTIFF’S OBJECTIONS, DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT AND
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I.

Procedural History

The plaintiff, Nancy Bentley (“Bentley”), filed an application
for Supplemental Security Income (“SSI”) under Title XVI of the
Social

Security

Act.

In

the

application,

Bentley

alleged

disability since June 2, 2005 due to degenerative bone disease,
severe arthritis, constant pain, poor blood circulation, peripheral
vascular disease, and restless leg syndrome.
The

Social

application

Security

initially

and

Administration
on

denied

reconsideration.

Bentley’s

Bentley

then

appeared with counsel at a hearing before an Administrative Law
Judge (“ALJ”).

The ALJ denied Bentley’s application, but the

Appeals Counsel remanded for further consideration of new medical
evidence

and

an

updated

consideration

of

Bentley’s

residual

functional capacity.

After the rehearing, the ALJ again denied

Bentley’s application, and the Appeals Counsel denied her request
for review.

Bentley then filed a request for judicial review, and

this Court remanded to the ALJ for further discussion and analysis
of whether Bentley’s impairments met or equaled Disability Listing
1.02A for major dysfunction of a joint.

Bentley then filed a

second application for SSI benefits, which was denied. The Appeals
Counsel remanded that application and consolidated it with her
initial

application.

The

ALJ

held

another

hearing

on

the

consolidated applications.
At the hearing, Bentley testified on her own behalf, as did a
vocational expert.

The ALJ issued a decision finding that Bentley

suffered from severe impairments of degenerative joint disease in
both

knees

and

varicose

veins

and

thrombosis in both lower extremities.

a

history

of

deep

venous

However, the ALJ found that

Bentley was not disabled under the Social Security Act but instead
found that Bentley had a Residual Functional Capacity to perform
light-level

work

with

certain

non-exertional

restrictions.

Regarding whether Bentley met or equaled Listing 1.02A, the ALJ
noted that this Court remanded on that single issue, and the ALJ
“found no new, convincing and objective medical evidence that has
been developed since [the prior ALJ’s decision] . . . as to any
deterioration/exacerbation of the claimant’s condition, or the
onset of any new injury[] or impairment such as would warrant any

2

significant departures from the other findings stated in that prior
hearing decision.”

ECF No. 9-9 at 26.

Further, the ALJ found that

Bentley was unable to perform her past relevant work, but that
there were jobs in significant numbers that Bentley could perform.
Thus, Bentley’s benefits were again denied.

Bentley then timely

filed an appeal of the decision to the Appeals Council, which
denied Bentley’s request for review.
Bentley then filed a request for judicial review of the ALJ’s
decision in this Court.

The case was referred to United States

Magistrate Judge Robert W. Trumble for submission of proposed
findings of fact and recommendation for disposition under 28 U.S.C.
§ 636(b)(1)(B).

Both parties filed motions for summary judgment.

After consideration of those motions, the magistrate judge entered
a report recommending that Bentley’s motion for summary judgment be
denied. Bentley filed objections to the report and recommendation.
Specifically, Bentley objected to the magistrate judge’s following
conclusions: (1) that the ALJ fully considered the criteria for
Listing 1.02A; (2) that the ALJ’s conclusions regarding that
listing were supported by substantial evidence; and (3) that the
ALJ properly considered a certain Treating Source Statement.
II.

Applicable Law

Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de
novo review of any portion of the magistrate judge’s recommendation
to which objection is timely made.

3

Because the petitioner filed

objections to the report and recommendation, the magistrate judge’s
recommendation will be reviewed de novo as to those findings to
which

objections

were

made.

As

to

those

findings

to

which

objections were not filed to the magistrate judge’s recommendation,
the findings and recommendation will be upheld unless they are
“clearly erroneous or contrary to law.”
III.

28 U.S.C. § 636(b)(1)(A).

Discussion

Bentley argues that the ALJ made three errors: (1) that the
ALJ failed to fully consider all criteria of Listing 1.02A; (2)
that the ALJ’s finding that Bentley did not meet the criteria of
Listing 1.02A was not supported by substantial evidence; and (3)
that the ALJ erred in not considering as a medical opinion a
Treating

Source

Statement

Bentley

objects

to

the

authored

by

magistrate

John

A.

judge’s

Adeniyi,

M.D.

findings

and

recommendations as to each of these alleged errors, and those will
be reviewed de novo.

This Court otherwise finds no clear error in

the magistrate judge’s findings and recommendations.
A.

Listing 1.02A
Magistrate Judge Trumble concluded that the ALJ conducted a

detailed analysis of each criteria of Listing 1.02A, and that his
findings

were

supported

by

substantial

evidence.

In

her

objections, Bentley argues that the ALJ did not make express
findings regarding whether she suffered from a major dysfunction of
a joint or whether that joint was a major weight-bearing joint.

4

She argues that this Court previously remanded the case to the ALJ
and instructed him to consider the medical evidence as to each
criteria of Listing 1.02A.

Thus, Bentley argues, the ALJ erred in

failing to make express findings regarding each of Listing 1.02A’s
criteria.

She argues that the magistrate judge committed clear

error by making new findings as to the listing criteria that the
ALJ did not make himself.
At the third step of the Social Security Administration’s
five-step sequential evaluation process, an ALJ must “consider the
medical severity of [the claimant’s] impairment(s). . . [and
determine if those] impairment(s) . . . meet[] or equal[] one of
[the disability] listings” located at 20 C.F.R. Part 404, Subpart
P, Appendix 1. 20 C.F.R. §§ 404.1520, 416.920. The claimant bears
the burden of proving that her medical impairments meet or equal
the severity of a listing impairment.
260, 264 (4th Cir. 1981).

Hall v. Harris, 658 F.2d

The ALJ must compare the criteria of

each relevant listing “to the evidence of the claimant’s symptoms.”
Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). Further, the
“ALJ is required to give more than a mere conclusory analysis of
the [claimant’s] impairments.”

Fraley v. Astrue, No. 5:07CV141,

2009 WL 577261, *25 (N.D. W. Va. Mar. 5, 2009).
Listing 1.02A for major dysfunction of a joint requires a
showing of
gross anatomical deformity . . . and chronic joint pain
and stiffness with signs of limitation of motion or other
5

abnormal motion of the affected joint[], and findings on
appropriate medically acceptable imaging of joint space
narrowing, boney destruction, or ankylosis of the
affected joint[] . . . [w]ith . . . [i]nvolvement of one
major peripheral weight-bearing joint . . . resulting in
inability to ambulate effectively, as defined in 1.00B2b.
20 C.F.R. § 404, Subpt. P, app’x 1, 1.02.

Inability to ambulate

effectively
means extreme limitation of the ability to walk; i.e., an
impairment[] that interfere very seriously with the
individual’s ability to independently initiate, sustain,
or complete activities.
Ineffective ambulation is
defined generally as having insufficient lower extremity
functioning . . . to permit independent ambulation
without the use of a hand-held assistive device[] that
limits the functioning of both upper extremities.
Id. 1.00B2b.
While the ALJ did not expressly state a conclusion as to each
criterion, the ALJ sufficiently compared the criteria of each
relevant listing “to the evidence of the claimant’s symptoms.”
Cook, 783 F.2d at 1173.

In considering whether Bentley met or

equaled Listing 1.02A, the ALJ noted medical and other evidence
relevant to each criteria in that listing.

As to the existence of

a gross deformity of a major peripheral weight-bearing joint, the
ALJ noted that a consultative physician found a “somewhat Hallux
deformity” in Bentley’s knees and that she was “‘kind of knocked
kneed,’” and that she had a “‘slight varus deformity of the right
ankle.’”

ECF No. 9-9 at 27.

As for “chronic joint pain and

stiffness with signs of limitation of motion or other abnormal
motion of the affected joint,” the ALJ noted various medical

6

evidence showing that Bentley’s “gait . . . was ‘a little painful’
and . . . ‘not really limping,’” but her “feet were noted to turn
‘slightly inward a little bit’ . . . when she walked.”
at 27.

ECF No. 9-9

The ALJ also noted that Bentley was at one point “required

to wear a brace that covered a large portion of her right leg from
‘just

below

original).

the

hip

to

[her]

ankle.’”

Id.

(alteration

in

As for “inability to ambulate effectively,” the ALJ

noted Bentley’s testimony regarding her ability “to shop and walk
the length of a mall,” along with various physicians’ observations
that she was able to drive herself to and from appointments, walk
without assistance of any assistive devices, and at worst may need
a cane “‘for walking longer distances.’”

ECF No. 9-9 at 27.

Accordingly, the ALJ fully considered the record in considering
whether Bentley met or equaled Listing 1.02A.
Further, to the extent that the ALJ’s failure to expressly
state

a

conclusion

as

to

each

criterion

of

Listing

constitutes error, any such error would be harmless.

1.02A

“[I]nability

to ambulate effectively” is a necessary criterion of Listing 1.02A,
and the ALJ expressly concluded that Bentley was able to ambulate
effectively.

Thus, regardless of the ALJ’s conclusion as to any

other criterion of Listing 1.02A, the ALJ would have found that
Bentley did not meet or equal Listing 1.02A because she was able to
ambulate effectively.

7

B.

Substantial Evidence Regarding Finding as to Listing 1.02A
Bentley argues that the ALJ’s finding that she did not meet

the criteria for Listing 1.02A was not supported by substantial
evidence because the ALJ failed to consider all relevant medical
evidence.
“ignored

Specifically, Bentley argues that the ALJ completely
all

of

the

treatment

records

from

the

orthopedic

specialists and all of the X-ray and MRI evidence of . . .
Bentley’s knees.” ECF No. 20 at 8. The magistrate judge concluded
that because the ALJ stated that he reviewed the entire record and
there is no evidence that he did not, the ALJ must be taken at his
word.

In her objections, Bentley argues that the court cannot

accept as true an ALJ’s statement that he reviewed the entire
record, and that the Substantial evidence standard requires the ALJ
to actually consider all relevant evidence.
The ALJ expressly relied upon the previous ALJ’s 2012 findings
regarding the treatment records of various orthopedic specialists
and radiological imaging of Bentley’s knees.
In

the

2012

hearing

decision,

the

ECF No. 9-9 at 414.

previous

ALJ

considered

orthopedic surgeons’ examinations of Bentley’s knees who opined
that she was “a candidate for a total knee arthroplasty.”
9-9 at 28.

ECF No.

The previous ALJ further noted “[x]-rays of her

bilateral knees at that time show[ing] significant degenerative
joint disease.”

Id.

The ALJ expressly agreed with the previous

ALJ’s finding that the orthopedic and radiological imaging evidence

8

was undercut by substantial evidence that Bentley was able to
manage her pain and ambulate effectively despite the issues with
her knees.

Id. at 414.

Accordingly, this Court finds that the ALJ

did consider the treatment records of orthopedic specialists and
the radiological imaging of Bentley’s knees.
C.

Treating Source Statement
Bentley argues that the ALJ erred in not considering Dr.

Adeniyi’s Treating Source Statement as a medical opinion.

The

magistrate judge concluded that substantial evidence supported the
ALJ’s determination that Dr. Adeniyi’s Treating Source Statement
did

not

constitute

a

medical

opinion

because

Dr.

Adeniyi’s

statements constitute commentary on Bentley’s preexisting treatment
plan rather than judgments about the nature and severity of her
impairments.

In her objections, Bentley argues that the ALJ did

not state whether he considered Dr. Adeniyi’s statement to be a
medical opinion, and that the magistrate judge simply made that
conclusion for the ALJ.

Bentley argues that the statement is a

medical opinion because it is from a physician and includes a
diagnosis and examination of symptoms.

Bentley argues, the ALJ’s

failure to consider Dr. Adeniyi’s statement as a medical opinion
resulted in his erroneous residual functional capacity finding that
Bentley did not need to elevate her legs during the day.
“In determining whether [a claimant] is disabled, [the ALJ
must] . . . always consider the medical opinions in . . . [the]

9

record together with the rest of the relevant evidence . . .
receive[d].” 20 C.F.R. § 416.927(b). The ALJ fully considered Dr.
Adeniyi’s letter, noting the length of the treatment relationship,
Bentley’s symptoms, and Dr. Adeniyi’s treatment plan for her.
No. 9-9 at 32.

ECF

While, the ALJ did not expressly state whether he

found Dr. Adeniyi’s opinion to be a medical opinion, he fully
considered the opinion to the same extent that he must consider a
medical opinion under applicable law. Accordingly, the ALJ did not
err in the manner of his consideration of Dr. Adeniyi’s opinion.
IV.

Conclusion

For the reasons set forth above, this Court finds that the
ALJ’s decision is supported by substantial evidence and that the
magistrate judge’s recommendation presents no error.

Accordingly,

the magistrate judge’s report and recommendation (ECF No. 19) is
AFFIRMED and ADOPTED, the plaintiff’s objections (ECF No. 20) are
OVERRULED, the plaintiff’s motion for summary judgment (ECF No. 12)
is DENIED, and the defendant’s motion for summary judgment (ECF No.
16) is GRANTED.
It is ORDERED that this civil action be 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

10

Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.
DATED:

July 22, 2016

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

11