Davis v. Commissioner Of Social Security Administration et al

Filing 16

MEMORANDUM OPINION AND ORDER DECLINING TO AFFIRM AND ADOPT 13 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE IN ITS ENTIRETY, GRANTING 11 THE DEFENDANTS MOTION FOR SUMMARY JUDGMENT AND DENYING 9 THE PLAINTIFFS MOTION FOR JUDGMENT ON THE PLEADINGS. It is further ORDERED that this case be DISMISSED and STRICKEN from the active docket of this Court. The Clerk is directed to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr. on 9/7/2017. (copy to counsel via CM/ECF) (nmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TODD PATRICK DAVIS,
Plaintiff,
v.

Civil Action No. 5:16CV53
(STAMP)

CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.
MEMORANDUM OPINION AND ORDER
DECLINING TO AFFIRM AND ADOPT REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE IN ITS ENTIRETY,
GRANTING THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
DENYING THE PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS
I.
On

February

13,

2013,

Background
the

plaintiff

Todd

Patrick

Davis

(“Davis”) protectively filed his first application under Title II
of

the

Social

Security

Act

for

a

period

of

disability

and

Disability Insurance Benefits (“DIB”) and under Title XVI of the
Social Security Act for Supplemental Security Income (“SSI”).

The

plaintiff alleged disability that began on January 16, 2009, and
December 20, 2010, later amended to December 31, 2010.
This claim was initially denied on May 16, 2013, and denied
again upon reconsideration on July 24, 2013. On July 21, 2014, the
plaintiff filed a written request for a hearing, which was held
before Administrative Law Judge (“ALJ”) Mary Peltzer on August 13,
2014, in Charlottesville, Virginia.
On November 6, 2014, the ALJ issued an unfavorable decision to
the plaintiff, finding that he was not disabled within the meaning

of the Social Security Act.

On February 19, 2016, the Appeals

Council denied the plaintiff’s request for review, making the ALJ’s
decision the final decision of the Commissioner.
On April 18, 2016, the plaintiff filed a complaint to obtain
judicial review of the final decision of the defendant, Acting
Commissioner

of

Social

Security

Carolyn

Colvin,1

pursuant

to

Section 205(g) of the Social Security Act, as amended, 42 U.S.C.
§405(g).

ECF No. 1.

On June 20, 2016, the Commissioner filed an answer and the
administrative record of the proceedings.

ECF Nos. 6 and 7.

On July 20, 2016, the plaintiff filed a motion for judgment on
the pleadings (ECF No. 9) and on August 11, 2016, the Commissioner
filed a motion for summary judgment (ECF No. 11).
Following review of the motions by the parties and the
administrative record, United States Magistrate Judge Michael John
Aloi issued a report and recommendation on July 28, 2017.
13.

ECF No.

The magistrate judge recommended that “Plaintiff’s Motion for

Summary Judgment2 (ECF No. 9) be granted, Defendant’s Motion for
Summary Judgment (ECF No. 11) be denied, and the decision of the

1

After this suit was filed, Nancy A. Berryhill replaced
Commissioner Carolyn W. Colvin as the Acting Commissioner of Social
Security. Accordingly, pursuant to Rule 25(d) of the Federal Rules
of Civil Procedure and 42 U.S.C. § 405(g), Nancy A. Berryhill was
substituted for Carolyn W. Colvin as “Commissioner” or “Defendant”.
2

The magistrate judge’s report and recommendation (ECF No. 13)
mistakenly refers to the plaintiff’s motion for judgment on the
pleadings (ECF No. 9) as “Plaintiff’s Motion for Summary Judgment”
(ECF No. 13 at 13).
2

Commissioner be vacated and that the case be remanded pursuant to
sentence four of 42 U.S.C. § 405(g) for further proceedings.”

ECF

No. 13 at 13.
The defendant then filed objections to the magistrate judge’s
report and recommendation on August 8, 2017.

ECF No. 14.

The

plaintiff filed a response to the defendant’s objections on August
22, 2017.

ECF No. 15.
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.”
Supp.

825

(E.D.

Cal.

1979).

See Webb v. Califano, 458 F.

Because

the

defendant

filed

objections, this Court will undertake a de novo review as to those
portions of the report and recommendation to which objections were
made.
III.
A.

Discussion

Contentions by the Parties
The plaintiff, in his motion for judgment on the pleadings,

asserts that the Commissioner’s decision “is contrary to the law
and is not supported by substantial evidence when the record as a
whole is reviewed by this Court.”

ECF No. 9 at 1.

Specifically,

the plaintiff alleges that: (1) the ALJ erred by failing to find

3

Davis’s carpal tunnel syndrome to be a severe impairment at step
two; (ECF No. 10 at 10) and (2) the ALJ erroneously failed to
address Davis’s limitations as a result of carpal tunnel syndrome,
when she posited her controlling hypothetical question and made her
Residual Functional Capacity (“RFC”) finding (ECF No. 10 at 11).
The defendant, in her motion for summary judgment, asserts
that the Commissioner’s decision is “supported by substantial
evidence and should be affirmed as a matter of law.”
at 1.

ECF No. 11

Specifically, the defendant states: “Plaintiff’s sole

argument on appeal is that the ALJ should have determined that his
carpal tunnel syndrome was a severe impairment at step two of the
sequential evaluation process and the ALJ’s failure to do so
constitutes reversible error.”

ECF No. 12 at 7.

The defendant

argues that substantial evidence supports the ALJ’s finding that
the plaintiff’s carpal tunnel syndrome was a non-severe impairment,
and that the issue is further nondispositive in this instance as
the ALJ proceeded beyond step 2.

ECF No. 12.

Following review of the administrative record, Magistrate
Judge Aloi found that “the Commissioner’s decision denying the
plaintiff’s application for Disability Insurance Benefits and
Supplemental Security Income is inconsistent with the law, and not
supported

by

substantial

evidence.”

ECF

No.

13

at

13.

The

magistrate judge recommended that “Plaintiff’s Motion for Summary
Judgment3 (ECF No. 9) be granted, Defendant’s Motion for Summary

3

See supra, footnote 2.
4

Judgment

(ECF

No.

11)

be

denied,

and

the

decision

of

the

Commissioner be vacated and that the case be remanded pursuant to
sentence four of 42 U.S.C. § 405(g) for further proceedings.”

ECF

No. 13 at 13.
The defendant then objected to the magistrate judge’s report
and recommendation

“because substantial evidence supports the

administrative law judge’s (ALJ) decision and the ALJ adequately
explained her analysis of the relevant medical evidence.”
14 at 1.

ECF No.

Specifically, the defendant states: “Magistrate Judge

Aloi correctly found that it was not error for the ALJ to find
Plaintiff’s carpal tunnel syndrome non-severe.”

ECF No. 14 at 2.

The defendant asserts, “the ALJ reasonably found that, while
Plaintiff had several severe physical and mental impairments, his
carpal tunnel syndrome was non-severe, a finding that means that
Plaintiff’s carpal tunnel syndrome by definition did not have more
than a minimal limitation on Plaintiff’s ability to do basic work
activities.”

ECF No. 14 at 2.

The defendant goes on to add, “[a]s

the ALJ found that Plaintiff’s carpal tunnel syndrome was minimal,
the ALJ was not required to include any resulting limitations in
Plaintiff’s RFC.”

ECF No. 14 at 4.

The defendant argues that Magistrate Judge Aloi erred by
finding that the ALJ failed to analyze the plaintiff’s non-severe
carpal tunnel syndrome throughout the rest of the sequential
process and states:

“A plain reading of the decision shows that

the ALJ thoroughly considered and discussed all of the evidence

5

pertaining to Plaintiff’s carpal tunnel syndrome, as well as
Plaintiff’s other non-severe impairments, in her RFC analysis.”
ECF No. 14 at 5.
The defendant adds, “[h]ere, contrary to Magistrate Judge
Aloi’s finding, the ALJ properly addressed Plaintiff’s non-severe
carpal tunnel syndrome in her RFC assessment” (ECF No. 14 at 6) and
asserts, “the ALJ’s decision enjoys the support of substantial
evidence and comports with law.” (ECF No. 14 at 10).
The plaintiff’s response in support of adopting the magistrate
judge’s report and recommendation asserts, “[t]he Magistrate Judge
correctly found that the ALJ erred in failing to account for
limitations

caused

by

Davis’s

Carpal

Tunnel

Syndrome

Controlling Hypothetical to the VE and in her RFC.”
at 2.

in

her

ECF No. 15

The plaintiff adds: “Defendant Commissioner presents an

argument that she did not raise before the Magistrate Judge
[arguing] that because the ALJ found Davis’s carpal tunnel syndrome
to be non-severe, she was not required to include limitations
arising

from

the

carpal

questions or the RFC.”

tunnel

syndrome

ECF No. 15 at 2.

in

her

hypothetical

The defendant asserts,

“[t]he Commissioner’s presentation of a new issue in her Objections
in an effort to re-litigate the issue should not be countenanced by
this Court.”

ECF No. 15 at 4.4

4

Although the plaintiff includes an error in his response
which names a different the plaintiff by the name of “Robert
Huffman” (ECF No. 15 at 1) and further “requests that this Court
reject the proposed findings and recommendations of the magistrate
judge,” (ECF No. 15 at 1), the remainder of the “argument in
6

B.

Analysis
As the defendant objects to the entirety of the magistrate

judge’s report and recommendation, this Court conducted a de novo
review of the entire report and recommendation.
In reviewing an administrative finding of no disability, the
scope of review is limited to determining whether “the findings of
the Secretary are supported by substantial evidence and whether the
correct law was applied.”
(4th Cir. 1990).

Hays v. Sullivan, 907 F.2d 1453, 1456

Substantial evidence is “such relevant evidence

as a reasonable mind might accept to support a conclusion.”
Richardson

v.

Perales,

402

U.S.

389,

401

(1971)

(quoting

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

It is

not within the province of a reviewing court to determine the
weight

of

the

evidence,

nor

is

it

the

court’s

function

to

substitute its judgment . . . if the decision is supported by
substantial evidence.

Hays, 907 F.2d at 1456 (citing Laws, 368

F.2d at 642; Snyder v. Ribicoff, 307 F.2d 518, 529 (4th Cir.
1962)).
In determining the issue of whether the claimant was disabled
under Sections 216(i), 223(d) and 1614(a)(3)(A) of the Social
Security Act, the ALJ concluded that the claimant has not been
under a disability within the meaning of the Social Security Act

support of adoption” in the response corrects this contradiction
and cures this misstatement by reaffirming the plaintiff’s argument
in support of this Court adopting the magistrate judge’s report and
recommendation (ECF No. 15).
7

from September 28, 2011, through November 6, 2016, the date of the
ALJ’s decision.

ECF No. 7-2 at 29.

After “careful consideration of the entire record,” the ALJ
found that the claimant plaintiff “does not have an impairment or
combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).”

ECF No. 7-2 at 15.

The ALJ

found that, “[a]long with the impairments considered ‘severe’, the
claimant also has a history of bilateral carpal tunnel syndrome”.
ECF No. 7-2 at 14.

The ALJ found the claimant had multiple non-

severe impairments and several severe impairments.
at 14.

ECF No. 7-2

The ALJ then referred to the plaintiff’s non-severe

impairments, including the plaintiff’s claim of carpal tunnel
syndrome, and stated:
Despite seeking and receiving treatment for these
impairments, there are no indications from the evidence
of record that these impairments, alone or in
combination, have had more than a minimal effect on the
claimant’s functional capabilities for the twelve-month
durational requirement of the regulations. Therefore,
the above-listed impairments are not considered severe.
In assessing a claimant’s RFC, the ALJ is required to consider
the combined effects of all of a claimant’s impairments, severe and
non-severe, throughout the subsequent steps of the process. 20
C.F.R. §§ 404.1523, 416.923.

The ALJ stated that in making her

finding, she considered “all symptoms and the extent to which these
symptoms

can

reasonably

be

accepted

8

as

consistent

with

the

objective

medical

evidence

an

other

evidence,

based

on

the

requirements of 20 CFR 404.1529 and 416.929 and SSRs 96-4p and 967p.”

ECF No. 7-2 at 17.
The ALJ noted the claimant plaintiff’s reporting of “chronic

hand numbness” and consequent problems with “holding/grasping
objects.”

ECF No. 7-2 at 18.

Further, the ALJ specifically

acknowledged the claimant plaintiff’s “history of diagnoses of
bilateral carpal tunnel syndrome.”

ECF No. 7-2 at 18.

referenced

of

physical

examinations

the

plaintiff’s

The ALJ
upper

extremities and found that the evidence of record “does not
establish ineffective ambulation or an inability to perform fine or
gross movements effectively.”

ECF No. 7-2 at 15.

The defendant states in her objections to the report and
recommendation that, “the ALJ noted that during a consultative
examination in April 2013, Plaintiff did not allege disability due
to carpal tunnel syndrome and he had 5/5 grip strength; no atrophy,
tenderness, redness, warmth, or swelling; and normal range of
motion (Tr. 19 citing 625).”

ECF No. 14 at 7.

Although the ALJ

does not reference the underlying record, specifically Exhibit No.
B7F page 3 of 5, to such an extent as posited by the defendant, and
this could be an overstatement and selective paraphrasing by the
defendant, it does not change the outcome of this Court’s analysis
as explained above.
After a de novo review of the magistrate judge’s report and
recommendation (ECF No. 13), this Court finds that the ALJ did not

9

ignore the plaintiff’s non-severe impairments at subsequent steps
and that the ALJ complied with all she was required to do at step
two of the sequential evaluation process.

The ALJ specifically

considered

of

the

combined

effect

of

all

the

plaintiff’s

impairments and listed the plaintiff’s impairments.
expressly

stated,

“[a]long

with

the

impairments

The ALJ
considered

‘severe’, the claimant also has a history of bilateral carpal
tunnel syndrome”.

ECF No. 14 at 8.

In assessing the plaintiff’s

RFC, the ALJ considered and discussed the plaintiff’s non-severe
carpal tunnel syndrome, and ultimately determined that it posed no
functional

limitations.

The

ALJ

adequately

accommodated

the

plaintiff’s functional limitations that were supported by the
evidence of record in her RFC assessment and reasonably found that,
while

the

plaintiff

had

several

severe

physical

and

mental

impairments, his carpal tunnel syndrome was non-severe, a finding
that means the plaintiff’s carpal tunnel syndrome by definition did
not have more than a minimal limitation on the plaintiff’s ability
to do basic work activities.
This Court has reviewed the record, as well as the parties’
motions

and,

after

a

de

novo

review,

this

Court

finds

that

substantial evidence supports the ALJ’s findings. This Court finds
that the ALJ thoroughly considered and discussed all of the
evidence pertaining to the plaintiff’s carpal tunnel syndrome as
well as the plaintiff’s other non-severe impairments in her RFC
analysis and properly addressed the plaintiff’s non-severe carpal

10

tunnel syndrome in her RFC assessment.

Accordingly, this Court

declines to adopt and affirm the magistrate judge’s report and
recommendation in its entirety.
IV.

Conclusion

Based upon a de novo review, this Court declines to affirm and
adopt the magistrate judge’s report and recommendation in its
entirety.

Thus, for the reasons stated above, the defendant’s

motion for summary judgment (ECF No. 11) is GRANTED and the
plaintiff’s motion for judgment on the pleadings (ECF No. 9) is
DENIED.

It is further ORDERED that this case be DISMISSED and

STRICKEN from the active docket of this Court.
IT IS SO ORDERED.
The Clerk is directed to transmit a copy of this 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:

September 7, 2017

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

11