Smith v. Commissioner Social Security Administration
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE: Denying 12 Motion for Judgment on the Pleadings; Granting 13 Def's Motion for Summary Judgment; Adopting 18 REPORT AND RECOMMENDA TIONS re 12 MOTION for Judgment on the Pleadings filed by Tammy Lynn Smith, 13 MOTION for Summary Judgment filed by Commissioner Social Security Administration, 1 Complaint filed by Tammy Lynn Smith; Civil action is Dismissed with Prejudice and Stricken from the active docket of this Court; Clerk directed to enter judgment pursuant to FRCP 58. Signed by Senior Judge Frederick P. Stamp, Jr on 8/23/17. (soa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TAMMY LYNN SMITH,
Civil Action No. 5:16CV128
NANCY A. BERRYHILL,
Acting Commissioner of
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 her 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 May
14, 2012, alleging disability beginning April 15, 2008.
work experience includes telemarketing, bartending, waitressing,
and working as a cashier.
She alleges that she is unable to work
due to the following ailments: depression; anxiety; obsessivecompulsive disorder; insomnia; mood disorder; chronic back pain;
hypothyroidism; high blood pressure; mini brain strokes; memory
This memorandum opinion and order contains only the most
relevant procedural and factual information. For more extensive
background information, see ECF No. 18.
loss; degenerated disc disease; herniated S1, L4, and L5; spinal
The plaintiff then filed a written request for a
hearing, and the Administrative Law Judge (“ALJ”) held a video
hearing on September 11, 2014, and December 18, 2014.
hearings, the plaintiff, acting pro se, and an impartial vocational
expert both testified.
The ALJ issued an unfavorable decision to
the plaintiff, and the plaintiff appealed.
The Appeals Council
denied the plaintiff’s request for review, and the plaintiff, by
counsel, timely brought her 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 March 6, 2012, her application
date; (2) the plaintiff had the following severe impairments:
gastroesophageal reflux disease (“GERD”); acromioclavicular (“AC”)
joint spurring of the right shoulder; irritable bowel syndrome;
major depressive disorder, recurrent moderate; anxiety disorder not
abuse/dependence 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 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.”
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
The plaintiff’s motion for summary judgment argues that
the Commisioner’s decision is contrary to the law and not supported
by substantial evidence. Specifically, the plaintiff contends that
the ALJ (1) failed to fulfill a heightened duty of care by failing
to conduct a full and fair inquiry and explore all the relevant
facts of the case; (2) failed to evaluate whether the plaintiff’s
intellectual disability “equaled” the requirements of Listing
consistent with Agency policy and United States Court of Appeals
for the Fourth Circuit precedent.
The plaintiff requests that the
Court reverse the Commissioner’s final decision and remand the case
for further administrative proceedings. The defendant’s motion for
supported by substantial evidence.
Specifically, the defendant
argues that (1) the ALJ fulfilled his duty to the plaintiff at the
hearing; (2) substantial evidence supports the ALJ’s step three
evaluation of the medical opinion evidence.
The magistrate judge entered his report and recommendation, to
recommends that this Court deny the plaintiff’s motion for summary
judgment, grant the defendant’s motion for summary judgment, and
accordingly dismiss with prejudice this civil action.
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
First, the magistrate judge properly found
that the ALJ fulfilled his duty of care to the plaintiff during the
The plaintiff had argued that the ALJ
failed to fulfill his heightened duty of care to ensure the
plaintiff, appearing pro se, had a “full and fair opportunity” to
present her claim by “scrupulously and conscientiously prob[ing]
into, inquir[ing] of, and explor[ing] all the relevant facts.” ECF
No. 12-1 at 2.
The magistrate judge found that, while the ALJ was
discourteous and not patient or explanatory to the plaintiff, the
ALJ did inquire about the plaintiff’s family, daily activities,
medical conditions, and medical treatment, and gave the plaintiff
an opportunity to share any additional information.
ECF No. 10-3
The magistrate judge correctly concluded that the ALJ did
not explain the vocational expert’s testimony to the plaintiff, but
that failing to do so did not prejudice the plaintiff because the
ALJ’s decision was fully comprehensive.
Second, the magistrate judge properly found that the ALJ’s
step three analysis is supported by substantial evidence.
Intellectual Disability Listing 12.05C, and that the ALJ erred by
failing to evaluate whether her impairments satisfied the Listing.
ECF No. 12-1 at 3.
The magistrate judge determined that the ALJ’s
analysis provides substantial evidence to sustain the conclusion
requirements to be considered disabled under Listing 12.05C. To be
“significantly subaverage intellectual functioning with deficits in
adaptive functioning initially manifested [before age 22]”; (2) “a
verbal, performance, or full scale IQ of 60 through 70”; and (3) “a
significant work-related limitation of function.”
20 C.F.R. Part
404, Subpart P, Appendix 1, § 12.05.
The magistrate judge first found that the ALJ sufficiently
supported his conclusion that the plaintiff does not have deficits
generally encompass a broad range of cognitive and behavioral
communication, self-care, home living, social/interpersonal skills,
use of community resources, self-direction, functional academic
skills, work, leisure, health, and safety.”
467 F. App’x 214, 218 (4th Cir. 2012).
Jackson v. \Astrue,
The magistrate found that
the plaintiff is moderately restricted in her daily activities and
noted that she had no problem caring for her personal needs, such
as being able to shower, dress herself, and prepare meals for
ECF No. 10-2 at 23.
The magistrate further found that
the plaintiff got along “okay” with family, neighbors, and friends;
that she could pay bills, count change, handle a savings account,
and use a checkbook; that she uses public transportation; and that
she watches television, plays games, makes jewelry, colors with her
daughter, and reads.
ECF No. 10-2 at 23-24.
Next, the magistrate judge noted that the plaintiff has an IQ
of 71, which is over the threshold requirement for a listed
impairment under Listing 12.05C.
ECF No. 10-2 at 44.
magistrate judge correctly determined that the plaintiff failed to
satisfy two of the three requirements for a listed impairment under
Lastly, the magistrate judge determined that the ALJ properly
Certified Nurse Practitioner Jill Emery.
The plaintiff had argued
(1) that the ALJ’s evaluation of Mr. Smith’s opinion was legally
insufficient and (2) that the ALJ failed to support his reasoning
for not including in the residual functional capacity (“RFC”)
assessment all of the limitations Ms. Emery expressed in her
ECF No. 12-1 at 7-15.
Mr. Smith, a therapist, and Ms.
Emery, a nurse practitioner, do not fall within the Agency’s list
of “acceptable medical sources,” and, thus, the ALJ was entitled to
give their opinions lesser weight than the opinions of acceptable
medical sources, so long as the ALJ explained the weight he gave to
416.913; Social Security Ruling 06-03p.
As to Mr. Smith, the
magistrate judge determined that the ALJ considered Mr. Smith’s
opinion and that Mr. Smith failed to give an opinion on the
plaintiff’s functional abilities. The ALJ specifically stated that
Mr. Smith “did not give any opinion regarding the [plaintiff’s]
functional abilities other than to state that she had difficulty
with general functioning at times.”
ECF No. 10-2 at 49.
magistrate judge correctly concluded that the plaintiff was not
prejudiced because Mr. Smith’s opinion was not explicitly assigned
weight or given more weight than the other medical providers.
As to Ms. Emery, the magistrate judge found that the ALJ
considered her opinion and did not err in not adopting her lifting
See McKenzie v. Colvin, No. 2:14CV52, 2015
WL 3442084, at *24 (N.D. W. Va. May 28, 2015) (“The ALJ does not
need to specifically list and address each factor in his decision,
so long as sufficient reasons are given for the weight assigned to
the treating source opinion.”).
The magistrate judge determined
that, although Ms. Emery’s opinion was “generally consistent with
the objective medical signs and findings,” it was within the ALJ’s
discretion to not adopt Ms. Emery’s lifting assessment.
considered the plaintiff’s complete medical history and gave great
weight to the opinions of the State Agency medical consultants.
ECF No. 10-2 at 50 and 52.
Thus, the magistrate judge properly
concluded that substantial evidence supports the ALJ’s evaluation
of the medical opinions.
This Court finds no error in any of the above determinations
of the magistrate judge and thus upholds his rulings.
For the reasons above, the magistrate judge’s report and
recommendation (ECF No. 18) is hereby AFFIRMED and ADOPTED.
the defendant’s motion for summary judgment (ECF No. 13) is GRANTED
and the plaintiff’s motion for summary judgment (ECF No. 12) is
It is ORDERED that this civil action be DISMISSED WITH
PREJUDICE 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 plaintiff has failed to
object, she has waived her 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.
August 23, 2017
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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