Moss v. Commissioner Of Social Security Administration

Filing 19

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 18 THE REPORT ANDRECOMMENDATION OF THE MAGISTRATE JUDGE: the plaintiffs motion for summary judgment 12 is GRANTED and the defendants motion for summary judgment 16 is DENIED. It is further ORD ERED that this case be REMANDED to the Commissioner for further fact finding in accordance with the magistrate judges report and recommendation. It is ORDERED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. The parties have failed to object, and have waived their right to seek appellate review of this matter. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 6/21/2017. (copy to counsel via CM/ECF) (nmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DARRELL WAYNE MOSS,
Plaintiff,
v.

Civil Action No. 5:16CV47
(STAMP)

COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION
Defendant.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING THE REPORT AND
RECOMMENDATION OF THE MAGISTRATE JUDGE
I.

Background1

The plaintiff, by counsel, seeks judicial review of the
Commissioner’s decision to deny his claims for disability insurance
benefits (“DIB”) under Title II of the Social Security Act and
supplemental security income (“SSI”) under Title XVI of the Social
Security Act.

The plaintiff applied for DIB and SSI on June 22,

2012, alleging disability beginning February 1, 2010.

His prior

work experience includes working as a construction worker, and he
alleges that is he unable to work due to the following ailments:
(1) injuries in his lower back, neck, shoulder, and left foot; (2)
memory loss, and (3) depression, anxiety, and nightmares.

His

claim was denied initially and again upon reconsideration.

The

plaintiff then filed a written request for a hearing, and the
1

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

Administrative Law Judge (“ALJ”) held a video hearing on September
17, 2014.

At the hearing, the plaintiff, represented by counsel,

testified, as did an impartial vocational expert.

The ALJ issued

an

the

unfavorable

appealed.

decision

to

the

plaintiff

and

plaintiff

The Appeals Council denied the plaintiff’s request for

review, and the plaintiff timely brought his claim before this
Court.
The ALJ used a five step evaluation process pursuant to 20
C.F.R. §§ 404.1420 and 416.920.

Using that process, the ALJ made

the following findings: (1) the plaintiff had not engaged in
substantial gainful activity since February 1, 2010, the alleged
onset date; (2) the plaintiff had the following severe impairments:
degenerative disc disease of the cervical spine status post fusion;
degenerative disease of the lumbar spine with radiculopathy status
post fusion; carpal tunnel syndrome of the right wrist; and left
rotator cuff tear status post surgical repair with acromioplasty;
(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.”

Therefore, the ALJ found that the

2

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’s motion for summary judgment argues that

the defendant’s decision is contrary to the law and not supported
by substantial evidence. Specifically, the plaintiff contends that
the ALJ (1) erred at step three when he summarily determined that
the plaintiff does not meet Listing 1.04A; (2) erred when he
determined that the plaintiff possesses the residual functional
capacity

(“RFC”)

to

perform

light

work,

and

(3)

improperly

evaluated the plaintiff’s credibility. The plaintiff requests that
the Court reverse the defendant’s decision and remand the case for
an award of benefits or, alternatively, remand the case for further
proceedings.

The defendant’s motion for summary judgment argues

that the defendant’s decision is supported by substantial evidence.
Specifically,

the

defendant

argues

that

substantial

evidence

supports (1) the ALJ’s step three findings; (2) the RFC for light
work; and (3) the ALJ’s credibility findings.
The

magistrate

recommendation.
deny

the

judge

then

entered

his

report

and

The magistrate judge recommends that this Court

defendant’s

motion

for

summary

judgment,

grant

the

plaintiff’s motion for summary judgment, and accordingly remand
this

civil

action.

These

recommendations

are

based

on

the

magistrate judge’s conclusion that the defendant erred at step

3

three of the sequential evaluation process.
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

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.

4

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.
At step three of the sequential evaluation process, a claimant
bears the burden of proving that his medical impairments meet or
equal the severity of an impairment recorded in the “Listing of
Impairments,” located at 20 C.F.R. Part 404, Subpart P, Appendix 1.
Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).

The claimant

establishes a prima facie case of disability if he meets this
burden. Id. Listing 1.04 applies to claims involving disorders of
the spine.

20 C.F.R. Part 404, Subpart P, Appendix 1.

Under

Listing 1.04, disorders of the spine must “result in limitations
because of distortion of the bony and ligamentous architecture of
the spine and [the resulting] associated impingement o[f] nerve
roots . . . or spinal cord.”

Id.

When detailing whether a

claimant has met the requirements of a listing, an ALJ must compare
the claimant’s actual symptoms to the requirements of the relevant
listed impairments in more than a “summary way.”

Cook v. Heckler,

783 F.2d 1168, 1173 (4th Cir. 1986).
The ALJ determined at step three that the objective criteria
of Listing 1.04 was not satisfied, reasoning that

5

there is no evidence of nerve root compression
characterized by neuroanatomic distribution of pain,
limitation of motion of the spine, motor loss accompanied
by sensory or reflex loss, and positive straight-leg
raising test. Also, the record does not document spinal
arachnoiditis, or lumbar spinal stenosis resulting in
pseudoclaudication. [The plaintiff] is able to ambulate
effectively.
ECF No. 7-2 at 15.

The magistrate judge found that the ALJ’s

reasoning at step three was insufficient because the ALJ was
required

to

compare

the

plaintiff’s

actual

symptoms

to

requirements of Listing 1.04 in more than a summary way.

the
The

magistrate judge determined that the ALJ has merely listed the
requirements of Listing 1.04 and stated that the plaintiff had not
satisfied them, which precludes meaningful judicial review.

The

magistrate judge noted that the only fact from the record that the
ALJ explicitly discussed was the plaintiff’s ability to ambulate
effectively.
The magistrate judge then pointed out that the record reflects
that

the

plaintiff

suffers

from

spinal

disorders

that

could

potentially meet or equal Listing 1.04A, of which the ALJ was well
aware.

For example, at step two, the ALJ concluded that the

plaintiff suffers from severe degenerative disc disease of the
cervical and lumbar spines.

ECF No. 7-2 at 14.

Additionally, at

step four, the ALJ noted that the plaintiff has also been diagnosed
with

radiculopathy

and

has

undergone

an

anterior

cervical

discectomy and fusion, as well as a transforaminal lumbar interbody
fusion.

ECF No. 7-2 at 16-17.

The ALJ also noted that, since the
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plaintiff’s surgeries, the plaintiff has been diagnosed with spinal
stenosis.

ECF No. 7-2 at 17.

Lastly, after stating at step three

that there is no evidence of a positive straight leg raising test,
the ALJ stated later in the opinion that “there is documentation of
a positive straight leg raise test.”

ECF No. 7-2 at 17.

Because

the plaintiff presented evidence relevant to the ALJ’s step three
analysis, the ALJ was required to explain why that evidence failed
to meet or medically equal the severity of Listing 1.04A in more
than a conclusory manner.

The magistrate recommends that, on

remand, the ALJ should fully develop the record and provide further
discussion and analysis of whether the plaintiff’s impairments meet
or medically equal Listing 1.04A.
This Court finds that the magistrate judge’s findings as to
the ALJ’s analysis at step three are not clearly erroneous.

The

record supports the magistrate judge’s conclusion that the ALJ’s
analysis was insufficient and precludes meaningful judicial review.
See Bentley v. Comm’r of Soc. Sec., No. 1:13CV163, 2014 WL 906587
(N.D. W. Va. Mar. 7, 2014).

The magistrate judge correctly

determined that the ALJ failed to compare the plaintiff’s actual
symptoms to the requirements of the relevant listed impairments in
more than a “summary way.”

Cook, 783 F.2d at 1173.

Court

magistrate

will

uphold

the

judge’s

Thus, this

findings

and

recommendation that the case be remanded so that the ALJ can fully
develop the record and provide further discussion and analysis of

7

whether the plaintiff’s impairments meet or medically equal Listing
1.04A.
The magistrate judge further concluded that the ALJ did not
err in (1) determining the plaintiff’s RFC or (2) evaluating the
plaintiff’s

credibility.

As

to

the

RFC

determination,

the

magistrate judge found that substantial evidence supports the ALJ’s
determination that the plaintiff is capable of performing light
exertional work.
[his

or

her]

The RFC is what a claimant “can still do despite
limitations.”

20

C.F.R.

§

404.1545(a)(1).

Specifically, the RFC is “[a] medical assessment of what an
individual can do in a work setting in spite of the functional
limitations and environmental restrictions imposed by all of his or
her medically determinable impairment(s).”

Dunn v. Colvin, 607 F.

App’x 264, 272 (4th Cir. 2015) (quoting Social Security Ruling
83-10).

The ultimate responsibility for determining a plaintiff’s

RFC is reserved for the ALJ, as the fact-finder.

Farnsworth v.

Astrue, 604 F. Supp. 2d 828, 835 (N.D. W. Va. 2009).
The magistrate judge concluded that the ALJ did not err in
determining that the plaintiff is capable of performing light
exertional work.

The plaintiff argued that the ALJ erroneously

determined that the plaintiff does not require a cane to ambulate.
The magistrate judge found that the plaintiff failed to meet his
burden of proving that the cane is medically necessary because the
plaintiff did not provide any medical documentation indicating that

8

one of his health care providers ordered him to walk with a cane or
even records establishing the circumstances for which a cane is
needed.

This Court finds that the magistrate judge’s finding that

the ALJ’s RFC determination is supported by substantial evidence is
not clearly erroneous and should be upheld.
As to the credibility evaluation, the magistrate judge found
that the ALJ properly followed the two-step process for determining
that the plaintiff was not credible. The plaintiff argued that the
ALJ erred when determining that the plaintiff is not credible
regarding his subjective complaints.

There is a two-step process

for determining whether a claimant is disabled by pain or other
symptoms.

See Craig v. Chater, 76 F.3d 585, 594 (4th Cir. 1996).

First, the ALJ must expressly consider whether the claimant has
demonstrated, through objective medical evidence, that a medical
impairment exists that is capable of causing the degree and type of
pain alleged.

Id.

Second, the ALJ must consider the credibility

of the claimant’s subjective allegations of pain in light of the
entire record.

Id.

Social Security Ruling 96-7p sets out several

factors, in addition to objective medical evidence, for an ALJ to
consider when assessing the credibility of a claimant’s subjective
symptoms and limitations.

If the ALJ meets his or her basic duty

of explanation, then “an ALJ’s credibility determination [will be
reversed] only if the claimant can show [that] it was ‘patently
wrong.’”

Sencindiver v. Astrue, No. 3:08CV178, 2010 WL 446174, at

9

*33 (N.D. W. Va. Feb. 3, 2010) (quoting Powers v. Apfel, 207 F.3d
431, 435 (7th Cir. 2000)).
The magistrate judge found that the ALJ properly followed the
two-step process because, initially, the ALJ determined that the
plaintiff had proved that he suffers from medical impairments that
could reasonably be expected to cause the alleged symptoms.

Then,

after examining the factors outlined in Social Security Ruling
96-7p, the ALJ further determined that the plaintiff’s statements
concerning the intensity, persistence, and limiting effects of the
symptoms were not credible in light of the entire record.

This

Court finds no clear error in the magistrate judge’s finding that
the ALJ met his basic duty of explanation in his discussion of the
relevant factors and that the plaintiff did not meet his burden of
showing that the ALJ’s credibility determination is patently wrong.
While the ALJ’s discussion is not extensive, it is sufficiently
specific to make clear his reasoning in finding the plaintiff not
entirely credible.

Thus, this Court accords the ALJ’s credibility

determination the great weight to which it is entitled.
Accordingly, this Court finds no error in the findings and
recommendations of the magistrate judge and thus upholds his
ruling.
IV.

Conclusion

For the reasons above, the magistrate judge’s report and
recommendation (ECF No. 18) is hereby AFFIRMED and ADOPTED.

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Thus,

the plaintiff’s motion for summary judgment (ECF No. 12) is GRANTED
and the defendant’s motion for summary judgment (ECF No. 16) is
DENIED.

It is further ORDERED that this case be REMANDED to the

Commissioner for further fact finding in accordance with the
magistrate judge’s report and recommendation.

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 parties have failed to

object, they have waived their 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:

June 21, 2017

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

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