Tennant v. Commissioner of Social Security
Filing
15
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE: Denying 10 Motion for Judgment on the Pleadings; Granting 12 Motion for Summary Judgment; and Adopting 14 REPORT AND RECOMMENDATION S re 12 MOTION for Summary Judgment filed by Commissioner of Social Security, and 10 MOTION for Judgment on the Pleadings filed by Barbara June Tennant ; Case to be Dismissed and Stricken; Clerk directed to enter Judgment pursuant to FRCP 58. Signed by Senior Judge Frederick P. Stamp, Jr on 7/15/16. (soa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
BARBARA JUNE TENNANT,
Plaintiff,
v.
Civil Action No. 5:15CV105
(STAMP)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING THE REPORT AND
RECOMMENDATION OF THE MAGISTRATE JUDGE
I.
Background1
The plaintiff, a thirty-seven year old woman, originally filed
an application for supplemental security income (“SSI”) based on
her alleged disabilities.
After her applications were denied at
the initial and reconsideration levels, she requested a hearing
before an administrative law judge (“ALJ”). On April 16, 2014, ALJ
Terrence Hugar conducted a hearing, at which the plaintiff, her
counsel, and a vocational expert were present.
The ALJ determined
that the plaintiff was not disabled, and the Appeals Council denied
the plaintiff’s request for review of the ALJ’s ruling.
The
plaintiff now seeks judicial review of the defendant’s final
ruling.
1
This memorandum opinion and order contains only the most
relevant procedural and factual information. For more extensive
background information, see ECF No. 14.
Prior to 2012, which is when she alleges her disabilities
formally developed, the plaintiff claims she suffered from several
medical
issues.
depression,
chest
incontinence.
persisted.
Those
issues
included
pain,
abdominal
pain,
diabetes,
pelvic
anxiety,
pain,
and
Since 2012, her above medical issues have allegedly
On September 19, 2012, Dr. Jim Capage conducted a
Physical Residual Functioning Capacity Assessment (“RFC”) of the
plaintiff.
Dr. Capage found that the plaintiff had the following
impairments:
(1)
urinary
tract
disorder;
(2)
diabetes;
(3)
borderline intellectual functioning; (4) anxiety disorder; and (5)
affective disorder. Dr. Capage also noted the following exertional
limitations: (1) the plaintiff can occasionally carry 50 pounds;
(2) the plaintiff can frequently carry 25 pounds; (3) she can
stand, walk, and sit for six hours in a normal workday; and (4) the
plaintiff has unlimited push/pull usage.
Dr. Ann Logan also
conducted an RFC of the plaintiff, in which she reached the same
conclusions as Dr. Capage.
At the plaintiff’s ALJ hearing, she testified to facts that
are similar to those discussed above.
The plaintiff further
discussed her prior work experience and home life.
In particular,
she pointed out that she last worked in 2013, that she currently
receives child support and food stamps, and that she suffers from
anxiety and depression while working around others.
Moreover, an
impartial vocational expert testified that the plaintiff would have
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the following jobs available to her: (1) commercial cleaner; (2)
order picker; and (3) bagger.
As to her pain level, the plaintiff
indicated that she suffers from daily stomach and vaginal pain that
lasts for twenty to thirty minutes.
After hearing testimony and reviewing the record, the ALJ
applied the five-step sequential evaluation process.
Based on
that evaluation process, the ALJ found the following: (1) that the
plaintiff did not engage in substantial gainful activity since her
application date; (2) that the plaintiff’s severe impairments were
anxiety,
depressive
disorder,
and
borderline
intellectual
functioning; (3) that the plaintiff’s impairments fail to meet or
equal the severity of one of the listed impairments under 20 C.F.R.
Part 404, Subpart P, Appendix 1; (4) that the plaintiff had the RFC
to perform a full range of work at all exertional levels subject to
certain
non-exertional
limitations;
and
(5)
in
light
of
the
plaintiff’s age, education, work experience, and RFC, a significant
amount of jobs exist in the national economy which the plaintiff
can perform.
Therefore, the ALJ determined that the plaintiff was
not disabled, as defined by the Social Security Act (“SSA”).
The plaintiff has since filed a complaint before this Court,
in which she seeks review of the ALJ’s ruling.
In her motion for
summary judgment, the plaintiff essentially claims that the ALJ
provided an inadequate explanation as to her RFC finding and failed
to
properly
evaluate
the
opinions
3
of
the
State
Agency
psychologists. In the defendant’s motion for summary judgment, the
defendant contends that the ALJ’s RFC is supported by substantial
evidence, and that the ALJ properly assessed the opinions under the
record.
United States Magistrate Judge Michael John Aloi entered a
report and recommendation, in which he recommends granting the
defendant’s motion for summary judgment and denying the plaintiff’s
motion for summary judgment.
ECF No. 14.
Magistrate Judge Aloi
found that the ALJ considered the evidence and assigned appropriate
weight to the evidence presented.
Moreover, the magistrate judge
determined that the ALJ did not explicitly assign weight to the
State Agency physician reports.
Magistrate Judge Aloi, however,
determined that such error was harmless, and thus, did not warrant
reversal.
Based on the ALJ’s thorough review of the plaintiff’s
medical record and the use of the five-step sequential
evaluation
process, the magistrate judge recommends that this Court grant the
defendant’s motion for summary judgment and deny the plaintiff’s
motion for summary judgment.
The parties did not file objections
to the report and recommendation.
For the reasons discussed below, the report and recommendation
of the magistrate judge is AFFIRMED AND ADOPTED.
defendant’s
motion
for
summary
judgment
is
Accordingly, the
GRANTED
plaintiff’s motion for summary judgment is DENIED.
4
and
the
II.
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.
III.
Discussion
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.”
Cir. 1996).
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.”
Id.
A
reviewing
court
“does
not
reweigh
evidence
or
make
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
decision.”
Thompson v. Astrue, 442 F. App’x 804, 805 (4th Cir.
2011) (quoting Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir.
2005)).
Further, as the Supreme Court of the United States stated
in United States v. U.S. Gypsum Co., “a finding is ‘clearly
erroneous’ when although there is evidence to support it, the
5
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 and the parties’ filings, this
Court finds that the ALJ’s findings are supported by substantial
evidence.
Further, the findings of the magistrate judge are not
clearly erroneous.
The record shows that the ALJ properly applied
the five-step sequential evaluation process after conducting a
thorough review of the plaintiff’s medical record and the evidence
presented by the parties.
examined
and
analyzed
determination.
the
In particular, the ALJ thoroughly
plaintiff’s
record
as
to
his
RFC
The ALJ listed each relevant medical record and
report, summarized its contents, and then used those facts to reach
his conclusion.
See ECF No. 8-2 *16 to 26.
Regarding the opinions
of the State Agency psychologists, the ALJ did not explicitly
assign weight to those opinions.
Nonetheless, the ALJ stated that
he “concurs with the opinion of the State Agency psychologists[.]”
Id. at 26.
In light of the record, substantial evidence still
clearly supports the ALJ’s opinion. The ALJ’s failure to assign an
explicit weight to those opinions amounts to harmless error at
most, which is an insufficient ground for reversal.
See Emigh v.
Commissioner of Social Sec., 2015 WL 545833, at *21 (N.D. W. Va.
Feb. 10, 2015); see generally Treadway v. Director, Office of
Workers’ Compensation Programs, U.S. Dept. of Labor, 977 F.2d 574
6
(4th Cir. 1992) (per curiam) (declining to reverse ALJ’s decision
when only harmless error was present).
and
the
parties’
filings,
this
After reviewing the record
Court
finds
that
substantial
evidence supports the findings of the ALJ. Moreover, this Court is
not “left with the definite and firm conviction that a mistake has
been committed” as to the findings of the magistrate judge.
Gypsum
Co.,
333
U.S.
at
395.
Therefore,
the
report
U.S.
and
recommendation of the magistrate judge is AFFIRMED AND ADOPTED, the
defendant’s
motion
for
summary
judgment
is
GRANTED,
and
the
plaintiff’s motion for summary judgment is DENIED.
IV.
Conclusion
For the reasons set forth above, the report and recommendation
of the magistrate judge (ECF No. 14) is AFFIRMED AND ADOPTED.
Therefore, the defendant’s motion for summary judgment (ECF No. 12)
is GRANTED and the plaintiff’s motion for summary judgment (ECF No.
10) is DENIED.
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
matter.
See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir.
1985).
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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:
July 15, 2016
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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