Richards v. Commissioner Social Security Administration

Filing 17

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 16 THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE: the plaintiffs 10 motion for summary judgment is DENIED and the defendants 14 motion for summary judgment is GRANTED. It is further ORDERED that this case be DISMISSED WITH PREJUDICE. It is ORDERED that this civil action be DISMISSED and 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 2/23/2017. (copy to counsel via CM/ECF; copy to Pro Se Plaintiff via CM,rrr) (nmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
RANDY LEE RICHARDS,
Plaintiff,
v.

Civil Action No. 5:16CV21
(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 his claims for Disability
Insurance

Benefits

(“DIB”)

and

Supplemental

Security

(“SSI”).

The plaintiff applied for DIB on February 25, 2013,

alleging disability beginning November 21, 2008.

Income

His claim was

initially denied on May 24, 2013, and again upon reconsideration on
July 2, 2013.
hearing.
and

that

The plaintiff then filed a written request for a

On June 25, 2014, the plaintiff filed for SSI benefits,
claim

was

escalated

to

the

hearing

level.

The

Administrative Law Judge (“the ALJ”) held a video hearing on July
18, 2014. The ALJ issued an unfavorable decision to the plaintiff,

1

This memorandum opinion and order contains only the most
relevant procedural and factual information. For more extensive
background information, see ECF No. 16.

and the plaintiff appealed.

The appeals council denied the

plaintiff’s request for review, and the plaintiff timely brought
his claim before this Court. The plaintiff alleges he is unable to
work due to (1) depression, (2) high blood pressure, (3) arthritis,
(4) left ankle impairments, (5) high cholesterol, (6) acid reflux,
and (7) a thyroid impairment.
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 November 21, 2008, the date of the alleged onset of
the plaintiff’s disability; (2) the plaintiff had the following
severe

impairments:

osteoarthritis

of

the

left

ankle,

gastroesophageal reflux disease, hypothyroidism, obesity, major
depressive disorder, and personality 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 perform any 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. 7-2 at 39.

Therefore, the

ALJ found that the plaintiff did not have a disability as defined
under the Social Security Act.

2

The plaintiff and the defendant both filed motions for summary
judgment.

The plaintiff argues that the ALJ (1) improperly

assessed the plaintiff’s credibility regarding the intensity,
persistence, and limiting effects of his symptoms and (2) failed to
adequately

explain

his

residual

functional

capacity

(“RFC”)

determination. The defendant argues that the ALJ properly assessed
the plaintiff’s credibility and that the credibility determination
is supported by substantial evidence.

The defendant also argues

that substantial evidence supports the ALJ’s RFC determination.
The magistrate judge entered his report and recommendation on
November 21, 2016. The magistrate judge recommends that this Court
deny

the

plaintiff’s

motion

for

summary

judgment,

grant

the

defendant’s motion for summary judgment, and dismiss with prejudice
this civil action.
As to the plaintiff’s first argument, the magistrate judge
found that the plaintiff failed to meet his burden of showing that
the ALJ’s credibility determination was patently wrong.

See

Sencindiver v. Astrue, No. 3:08CV178, 2010 WL 446174, at *33 (N.D.
W. Va. Feb. 3, 2010) (stating that, if the ALJ meet his basic duty
of

explanation,

“an

ALJ’s

credibility

determination

[will

be

reversed] only if the claimant can show it was ‘patently wrong’”
(quoting Powers v. Apfel, 207 F.3d 431, 435 (7th Cir. 2000))). The
magistrate judge found that the ALJ’s discussion of the evidence in
reaching his credibility determination was sufficiently specific to

3

make clear his reasoning in finding that the plaintiff is not
entirely credible.
As to the plaintiff’s second argument, the magistrate judge
also found that the ALJ’s RFC determination was supported by
substantial evidence.

The magistrate judge found that the ALJ

properly identified the plaintiff’s symptoms and limitations and
then conducted the required function-by-function analysis, which
was

accompanied

evidence.

by

a

five-page

narrative

discussion

of

the

The magistrate judge found that he was able to discern

from the ALJ’s discussion how the ALJ arrived at his conclusions
and was not left guessing at the ALJ’s reasoning.
For those reasons, the magistrate judge found that substantial
evidence

supports

the

defendant’s

denial

of

the

plaintiff’s

application for DIB and SSI. Thus, the magistrate judge determined
that the defendant’s motion for summary judgment should be granted,
the plaintiff’s motion for summary judgment should be denied, and
that the civil action should be dismissed with prejudice.
parties did not file objections.

The

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.
4

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. 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.

5

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 his

motion

judgment,

for

summary

the

magistrate

judge

correctly

concluded that the plaintiff did not satisfy his burden of showing
that the ALJ’s credibility determination was patently wrong as
required by Sencindiver. The magistrate judge notes that, when the
ALJ meets his basic duty of explanation, “[a]n ALJ’s credibility
determinations are ‘virtually unreviewable’ by this Court.”

Ryan

v. Astrue, No. 5:09CV55, 2011 WL 541125, at *3 (N.D. W. Va. Feb. 8,
2011).

The magistrate judge also correctly notes that an ALJ need

not document specific findings as to each credibility factor set
out in Social Security Ruling 96-7p.

See Wolfe v. Colvin, No.

3:14CV4, 2015 WL 401013, at *4 (N.D. W. Va. Jan. 28, 2015).

In

this case, and as the magistrate judge thoroughly documents in his
report and recommendation, the ALJ’s discussion of each credibility
factor is sufficiently specific to make clear the ALJ’s reasoning
in finding the plaintiff not entirely credible.

Because the

plaintiff did not satisfy his burden of showing that the ALJ’s
credibility determination was patently wrong, the magistrate judge
properly accorded the ALJ’s credibility determination the great
weight to which it is entitled.

Thus, there was no error in the

magistrate judge’s finding that the ALJ properly assessed the
plaintiff’s credibility.

6

As to the plaintiff’s second argument in his motion for
summary judgment, this Court also finds no error in the magistrate
judge’s

finding

determination.
first

that

the

ALJ

adequately

explained

his

RFC

When performing as RFC assessment, an ALJ “must

identify

the

[claimant’s]

functional

limitations

or

restrictions and assess his or her work-related abilities on a
function-by-function basis,” including the claimant’s physical
abilities, mental abilities, and “other work-related abilities.”
Williams v. Comm’r of Soc. Sec., No. 3:14CV24, 2015 WL 2354563, at
*4 (N.D. W. Va. May 15, 2015).

After the function-by-function

analysis, the ALJ may “express the RFC ‘in terms of the exertional
levels of work, sedentary, light, medium, heavy, and very heavy.’”
Id. (quoting SSR 96-8p, 1996 WL 374184, at *1).

Next, the RFC

“assessment must 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).”

Id. (quoting SSR 96-8p, 1996 WL

374184, at *7).
In this case, the magistrate judge correctly determined that
the

ALJ

sufficiently

determination.
limitations,

discussed

his

reasoning

for

the

RFC

After identifying the plaintiff’s symptoms and
the

ALJ

analyzed

the

plaintiff’s

abilities on a function-by-function basis.

work-related

The ALJ then included

a narrative discussion of the evidence over the course of five

7

pages.

From the ALJ’s function-by-function analysis and narrative

discussion, this Court is able to discern how the ALJ arrived at
his

conclusions

regarding

the

plaintiff’s

limitations

and

abilities.
The plaintiff points to the ALJ’s statement that the plaintiff
“can stand, walk, or [be] on his feet for 30 minutes at a time,”
and argues that the ALJ failed to determine how long he would need
to sit before standing again or how many hours he could be on his
feet in a workday.

The magistrate judge correctly concluded that,

when read as a whole, the ALJ’s decision provides sufficient
reasoning of his RFC determination.

See Pearson v. Colvin, No.

2:14CV26, 2015 WL 3757122, at *34 (N.D. W. Va. June 16, 2015)
(stating that, when reviewing an ALJ’s decision, a court must read
the “decision as a whole”).

The ALJ made clear in his opinion

that, while the plaintiff can only be on his feet for 30 minutes at
a time, the plaintiff does not require such extensive breaks as to
prevent him from standing or walking for a good deal of the
workday.

Thus, the plaintiff’s argument fails.

The plaintiff also points to the ALJ’s statement that the
plaintiff possesses “moderate limitations in his ability to work
around the public and co-workers” and argues that the ALJ did not
phrase

the

statement

properly

for

an

RFC

determination.

Specifically, the plaintiff argues that an RFC determination must
specify what a claimant can do in a work setting despite his or her

8

limitations.
error

on

The magistrate judge correctly concluded that any

the

part

of

the

ALJ

in

not

properly

plaintiff’s mental RFC is harmless in nature.

phrasing

the

See Mickles v.

Shalala, 29 F.3d 918, 921 (4th Cir. 1994) (holding that remand is
unnecessary, despite an ALJ’s error, when the ALJ would have
reached the same result notwithstanding his error).
thoroughly

discussed

the

plaintiff’s

mental

The ALJ

symptoms

and

limitations in his decision and made clear his determination that
the plaintiff is capable of performing all of the mental functions
required of unskilled work, with the exception that he may work
around the public and co-workers only in a limited capacity. Thus,
this argument by the plaintiff also fails. Accordingly, 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
plaintiff’s

is

hereby

motion

for

AFFIRMED
summary

and

judgment

ADOPTED.
is

Thus,

DENIED

and

the
the

defendant’s motion for summary judgment is GRANTED.

It is further

ORDERED that this case be DISMISSED WITH PREJUDICE.

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

9

the report and recommendation in this action would result in a
waiver of appellate rights.

Because the defendant has failed to

object, he has waived his right to seek appellate review of this
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 23, 2017

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

10