Wince v. Commissioner Social Security Administration
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING THE 14 REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE: Granting 9 MOTION for Judgment on the Pleadings filed by Michael Don Wince ; Denying 11 MOTION for Summary Judgment filed by Commissioner; Adopting and Affirming 14 REPORT AND RECOMMENDATIONS re 11 MOTION for Summary Judgment filed by Commissioner Social Security Administration, 9 MOTION for Judgment on the Pleadings filed by Michael Don Wince. Case remanded to Commissioner of SSA and dismissed and stricken from active docket of this Court; Clerk directed to enter Judgment pursuant to FRCP 58. Signed by Senior Judge Frederick P. Stamp, Jr on 3/13/17. (soa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MICHAEL DON WINCE,
Civil Action No. 5:15CV165
COMMISSIONER OF SOCIAL
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING THE REPORT AND
RECOMMENDATION OF THE MAGISTRATE JUDGE
In this case, the plaintiff, by counsel, seeks judicial review
of the defendant’s decision to deny his claims for Disability
Insurance Benefits (“DIB”) under Title II of the Social Security
The plaintiff applied for DIB on August 13, 2012, alleging
disability beginning October 29, 2010.
His claim was denied
initially and then again on reconsideration.
filed a written request for a hearing.
The plaintiff then
The Administrative Law
Judge (“the ALJ”) held a hearing on March 17, 2014.
The ALJ issued
an unfavorable decision to the plaintiff on May 30, 2014, and the
The appeals council denied the plaintiff’s
request for review, and the plaintiff timely brought his claim
before this Court. The plaintiff worked as tree trimmer for twelve
This memorandum opinion and order contains only the most
relevant procedural and factual information. For more extensive
background information, see ECF No. 14.
years and alleges that back, neck, and shoulder problems, a
learning disability, and anxiety have limited his ability to work.
To determine whether the plaintiff was disabled, the ALJ used
a five-step evaluation process pursuant to 20 C.F.R. §§ 404.1520
Using that process, the ALJ made the following
findings: (1) the plaintiff had not engaged in substantial gainful
activity since October 29, 2010, the date of the alleged onset of
the plaintiff’s disability; (2) the plaintiff had the following
severe impairments: status-post cervical discectomy and fusion for
treatment of cervical fracture, grade 1 anterolisthesis of C3 and
impairments of borderline intellectual functioning and an anxiety
disorder; (3) none of the plaintiff’s impairments met or medically
equaled the severity of any of the impairments listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1; (4) the plaintiff is unable to
claimant’s age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform.”
ECF No. 7-2 at
Therefore, the ALJ found that the plaintiff did not have a
disability as defined under the Social Security Act.
The plaintiff filed a motion for judgment on the pleadings and
the defendant filed a motion for summary judgment.
ECF Nos. 9 and
The plaintiff also responded to the defendant’s
motion for summary judgment.
ECF No. 13.
The plaintiff argues
that (1) the ALJ erred by failing to perform the required functionby-function analysis when determining the plaintiff’s residual
functional capacity (“RFC”) and (2) the ALJ’s step five finding is
not supported by the vocational expert’s testimony because the job
cited by the ALJ does not exist in significant numbers.
defendant argues that (1) substantial evidence supports the ALJ’s
RFC assessment, where he accounted for all credibility-established
limitations related to the plaintiff’s neck impairment, and (2) the
ALJ appropriately relied on the testimony of the vocational expert
at step five.
The magistrate judge entered his report and recommendation on
January 12, 2017.
The magistrate judge recommends that this Court
plaintiff’s motion for judgment on the pleadings, and remand the
As to the parties’ first contention, the magistrate judge
found that substantial evidence does not support the ALJ’s RFC
finding. The magistrate judge found that, while the ALJ did assess
what functions the plaintiff can perform, he failed to discuss his
Additionally, the magistrate judge noted that the ALJ failed to
reference the plaintiff’s range of motion limitations in the RFC
and provided no explanation for the omission.
Thus the magistrate
conclusions on Plaintiff’s ability to perform relevant functions.”
ECF No. 14 at 21 (citing Mascio v. Colvin, 780 F.3d 632, 637 (4th
As to the parties’ second contention, the magistrate judge
found that the vocational expert’s testimony is unreliable because
(1) the vocational expert’s answer to one of the ALJ’s hypothetical
questions lacks clarity and (2) it is unclear whether the posed
limitations. The magistrate judge found that contradictions in the
vocational expert’s statements suggest that if the job in question,
a surveillance system monitor position, “involves certain levels of
complexity, then Plaintiff might not be able to perform those more
ECF No. 14 at 23.
The magistrate judge concluded
that “[t]his casts doubt on [the expert’s] initial assessment,
obscuring the actual number of system monitor positions available.”
ECF No. 14 at 23.
As to the ALJ’s hypothetical questions, the
magistrate judge was unable to determine whether they included all
determined the plaintiff’s range of motion limitations relating to
the plaintiff’s neck impairments.
For those reasons, the magistrate judge found that substantial
evidence does not support the defendant’s denial of the plaintiff’s
application for DIB.
Thus, the magistrate judge determined that
the defendant’s motion for summary judgment should be denied, the
plaintiff’s motion for judgment on the pleadings should be granted,
and that the civil action should be remanded.
The parties did not
For the reasons set forth below, the report and
recommendation of the magistrate judge is affirmed and adopted.
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 United States v. United States 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 findings exist concerning the magistrate judge’s report
As to the parties’ first contention regarding
whether substantial evidence supports the ALJ’s RFC finding, the
magistrate judge correctly concluded that the ALJ’s RFC assessment
is not supported by substantial evidence.
Social Security Ruling
individual’s functional limitations or restrictions and assess his
or her work-related abilities on a function-by-function basis.”
Mascio, 780 F.3d at 636 (quoting SSR 96-8p, 61 Fed. Reg. at 34,47401).
Only after a function-by-function analysis may the RFC be
expressed “in terms of the exertional levels of work.”
ruling also requires that the RFC assessment “include a narrative
discussion describing how the evidence supports each conclusion,
citing specific medical facts (e.g., laboratory findings) and
nonmedical evidence (e.g., daily activities, observations).”
(quoting SSR 96-8p, 61 Fed. Reg. at 34,474-01).
Remand may be
appropriate “where an ALJ fails to assess a claimant’s capacity to
perform relevant functions, despite contradictory evidence in the
record, or where other inadequacies in the ALJ’s analysis frustrate
meaningful review.” Id. (quoting Cichocki v. Astrue, 729 F.3d 172,
177 (2d Cir. 2013)).
The magistrate judge noted that the only evidence cited by the
ALJ regarding the plaintiff’s range of motion limitation is the
fact that, specifically regarding the plaintiff’s cervicalagia, one
doctor reported that the plaintiff is able to carry out all of his
involving his cervical spine, which prevents him from turning his
head side to side.”
ECF No. 14 at 20.
The ALJ also failed to
discuss the plaintiff’s ability to perform particular functions for
a full workday.
The magistrate judge correctly found that the ALJ
erred in failing to mention the plaintiff’s range of motion
limitations relating to his neck impairments and that the error was
The magistrate judge properly concluded that the
cited evidence does not amount to substantial evidence.
As to the parties’ second contention regarding whether the
ALJ’s step five finding is supported by the vocational expert’s
vocational expert’s testimony is unreliable. The vocational expert
indicated in her testimony that the number of available jobs she
cited could be significantly reduced if the surveillance system
monitor position involves certain levels of complexity.
given the vocational expert’s unclear testimony, it is impossible
to extract any clear estimates of available jobs.
correctly concluded that remand is necessary so that the vocational
expert can assess the actual number of jobs with a complexity level
that fits the plaintiff’s capabilities.
Additionally, because the ALJ never determined the plaintiff’s
range of motion limitations relating to his neck impairments, it is
impossible to determine whether the hypothetical questions he posed
to the vocational expert account for all of the plaintiff’s
See Hines v. Barnhart, 453 F.3d 559, 566
(4th Cir. 2006) (“[I]n order for a vocational expert’s opinion to
be relevant or helpful, it must be based upon a consideration of
all other evidence in the record, and it must be in response to
claimant’s impairments.” (citing Walker v. Bowen, 889 F.2d 47, 50
(4th Cir. 1989))).
Thus, the magistrate judge correctly concluded
that remand is further necessary for the ALJ to pose hypothetical
questions that account for all of the plaintiff’s functional
limitations after the ALJ determines the plaintiff’s range of
motion limitations relating to his neck impairments.
this Court finds no error in the determination of the magistrate
judge and thus upholds his ruling.
For the reasons above, the magistrate judge’s report and
plaintiff’s motion for judgment on the pleadings is GRANTED. It is
further ORDERED that this case be REMANDED to the Commissioner for
further action in accordance with the magistrate judge’s report and
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 defendant has failed to
object, she 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 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.
March 13, 2017
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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