Ecker v. Commissioner Of Social Security Administration

Filing 19

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE: Granting in part 11 Motion for Summary Judgment; Denying 16 Motion for Summary Judgment; Adopting Report and Recommendations re 18 R EPORT AND RECOMMENDATIONS re 11 MOTION for Summary Judgment filed by Pepsi Ecker, 16 MOTION for Summary Judgment filed by Commissioner Of Social Security Administration; case is remanded to Commissioner for further action; and this civil action is Dismissed and Stricken from the active docket of this Court. Appellate review waived; Clerk directed to enter judgment pursuant to FRCP 58. Signed by Senior Judge Frederick P. Stamp, Jr on 2/9/17. (soa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
PEPSI ECKER,
Plaintiff,
v.

Civil Action No. 5:16CV5
(STAMP)

CAROLYN W. COLVIN,
Acting Commissioner of
Social Security
Defendant.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING THE REPORT AND
RECOMMENDATION OF THE MAGISTRATE JUDGE
I.

Background1

In this case, the plaintiff, by counsel, seeks judicial review
of the defendant’s decision to deny her claims for Supplemental
Security Income (“SSI”). The plaintiff applied for SSI on December
15, 2012, alleging disability beginning March 1, 2003.
was

initially

denied

on

December

reconsideration on May 10, 2013.

15,

2012,

and

Her claim
again

upon

The plaintiff then filed a

written request for a hearing, and the Administrative Law Judge
(“the ALJ”) held a video hearing on September 12, 2014.

The ALJ

issued an unfavorable decision to the plaintiff, and the plaintiff
appealed.

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The appeals council denied the plaintiff’s request for

This memorandum opinion and order contains only the most
relevant procedural and factual information. For more extensive
background information, see ECF No. 18.

review, and the plaintiff timely brought her claim before this
Court.
To determine whether the plaintiff was disabled, the ALJ used
a five-step evaluation process pursuant to 20 C.F.R. §§ 404.1520
and 416.920.

Using that process, the ALJ made the following

findings: (1) the plaintiff had not engaged in substantial gainful
activity since December 15, 2012, the date of her application; (2)
the plaintiff had the following severe impairments: depression,
anxiety, hypertension, and headaches; (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 has no past relevant work; and (5) “[c]onsidering
the

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. 9-2 at 19.

Therefore, the ALJ found that the plaintiff did

not have a disability as defined under the Social Security Act.
The plaintiff and the defendant both filed motions for summary
judgment.

The plaintiff argues that the ALJ (1) improperly

evaluated the plaintiff’s mental impairments and (2) erroneously
assessed the plaintiff’s residual functional capacity (“RFC”). The
plaintiff’s first argument relies on Chandler v. Commissioner of
Social Security, No. SAG 15 1408, 2016 WL 750549, at *2 (D. Md.
Feb. 24, 2016), which explains the process the ALJ must follow when

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evaluating mental impairments.
was

improper

for

the

ALJ

to

The Chandler court stated that it
“simply

state[]

the

degree

of

functional limitation in each area, with no specific citation to
the evidence of record or explanation of the reasons for each
finding.”

Chandler, 2016 WL 750549, at *2.

Here, the plaintiff

argues that, like in Chandler, the ALJ did not provide adequate
explanation to support his conclusions.

The defendant argues that

the ALJ discussed and specifically cited to the relevant evidence,
and that the plaintiff did not satisfy her burden of proof that she
is disabled.
The plaintiff’s second argument is that the ALJ failed to
properly assess the plaintiff’s limitations as required by Social
Security Ruling 96-8p (1996) because he did not perform a functionby-function assessment of the claimant’s ability to perform the
physical and mental demands of work.

The plaintiff argues that,

“[a]lthough the [ALJ] determined that the Plaintiff has moderate
difficulties with regard to concentration, persistence, or pace, he
failed

to

include

any

limitation

on

concentration

or

task

persistence in his [RFC], and instead limited the Plaintiff to the
performance of simple, routine, repetitive, unskilled tasks.”
No. 12 at 10.

ECF

The plaintiff argues that the United States Court of

Appeals for the Fourth Circuit determined such an assessment is
inadequate in Mascio v. Colvin, 780 F.3d 632 (4th Cir. 2015).

The

defendant argues that the ALJ undertook an individualized review of

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all

relevant

assessment,

evidence,

and

applied

engaged
the

in

a

appropriate

function-by-function
legal

principles

in

calculating the plaintiff’s RFC. The defendant also notes that the
ALJ properly included a narrative discussion of the evidence that
described how the evidence supported his conclusions.
The magistrate judge entered his report and recommendation on
September 29, 2016.

The magistrate judge found unpersuasive the

plaintiff’s first argument that the ALJ improperly evaluated the
plaintiff’s

mental

impairments,

but

found

persuasive

the

plaintiff’s second argument that the ALJ erroneously assessed the
plaintiff’s RFC.
As to the plaintiff’s first argument, the magistrate judge
agrees with the defendant that “[a] review of the ALJ’s decision
shows that the ALJ’s analysis was not conclusory as in Chandler.”
ECF No. 18 at 7.

The magistrate judge found that, unlike in

Chandler, he could track the ALJ’s reasoning as required by Radford
v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013), and that the ALJ
discussed the plaintiff’s mental impairments in detail.

As to the

plaintiff’s second argument, the magistrate judge found that the
ALJ’s evaluation improperly failed to include a limitation for the
plaintiff’s difficulties with concentration, persistence, or pace
in her RFC.

The magistrate judge agreed with the plaintiff that

Mascio

not

does

permit

the

ALJ

4

to

account

for

a

claimant’s

limitations by restricting the hypothetical questions to simple,
routine tasks or unskilled work.
For those reasons, the magistrate judge found that substantial
evidence did not support the defendant’s denial of the plaintiff’s
application for SSI.

Thus, the magistrate judge determined that

the defendant’s motion for summary judgment should be denied, the
plaintiff’s motion for summary judgment should be granted in part,
and that the civil action should be remanded.
file objections.

The parties did not

For the reasons set forth below, the report and

recommendation of the magistrate judge is affirmed and adopted.
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
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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. 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
and recommendation.

As to the plaintiff’s first argument in her

motion for summary judgment, this Court is able to track the ALJ’s
reasoning as required by Radford.

The plaintiff’s motion for

summary judgment cites only one portion of the ALJ’s analysis, and
the paragraphs preceding the one cited by the plaintiff discuss the
plaintiff’s mental impairments in detail.

ECF No. 9-2 at 14-17.

Thus, there was no error in the magistrate judge’s finding that the
ALJ’s analysis was not conclusory and that the ALJ’s reasoning can
be clearly tracked by this Court.

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As to the plaintiff’s second argument in her motion for
summary judgment, this Court also finds no error in the magistrate
judge’s finding that the ALJ erroneously assessed the plaintiff’s
RFC.

The ALJ did not include a limitation for the plaintiff’s

difficulties

with

concentration,

persistence,

or

pace

in

the

plaintiff’s RFC as required by Mascio. Instead, the ALJ improperly
accounted

for

the

plaintiff’s

limitations

by

restricting

the

hypothetical questions to simple, routine tasks or unskilled work.
Therefore, this Court finds no error in the determination of the
magistrate judge and thus upholds his ruling.
IV.

Conclusion

For the reasons above, the magistrate judge’s report and
recommendation

is

hereby

AFFIRMED

and

ADOPTED.

Thus,

the

plaintiff’s motion for summary judgment is GRANTED IN PART and the
defendant’s motion for summary judgment is DENIED.

It is further

ORDERED that this case be REMANDED to the Commissioner for further
action

in

accordance

recommendation.

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 her right to seek appellate review of this

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matter.

See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir.

1985).
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:

February 9, 2017

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

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