Bolyard Moore v. Commissioner of Social Security
Filing
20
MEMORANDUM OPINION AND ORDER ADOPTING AND AFFIRMING MAGISTRATE JUDGE'S 14 REPORT AND RECOMMENDATION, GRANTING DEFENDANT'S 11 MOTION FOR SUMMARY JUDGMENT, DENYING PLAINTIFF'S 9 MOTION FOR SUMMARY JUDGMENT AND OVERRULING PLAIN TIFF'S OBJECTIONS. It is ORDERED that this civil action be DISMISSED WITH PREJUDICE 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 2/21/18. (lmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DONNA LYNN BOLYARD MOORE,
Plaintiff,
v.
Civil Action No. 5:16CV184
(STAMP)
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.
MEMORANDUM OPINION AND ORDER
ADOPTING AND AFFIRMING MAGISTRATE
JUDGE’S REPORT AND RECOMMENDATION,
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT,
DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
AND OVERRULING PLAINTIFF’S OBJECTIONS
I.
Procedural History
The plaintiff, Donna Lynn Bolyard Moore, filed an application
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,
disability that began on July 30, 2013.
in
which
she
alleges
The plaintiff alleges that
she is unable to work due to the following ailments: rheumatoid
arthritis, psoriatic arthritis, fibromyalgia, hearing loss, high
blood pressure, diabetes, restless leg syndrome, and severe dry eye
syndrome.
The Social Security Administration (“SSA”) denied the
plaintiff’s application initially and on reconsideration.
The
plaintiff then appeared, represented by counsel, at a hearing before
an Administrative Law Judge (“ALJ”).
At the hearing, the plaintiff
testified on her own behalf, as did an impartial vocational expert.
The ALJ issued an unfavorable decision to the plaintiff, concluding
that the plaintiff was not “disabled” within the meaning of the
Social Security Act.
The plaintiff then filed an appeal of the
decision to the Appeals Council.
On November 2, 2016, the Appeals
Council denied the plaintiff’s request for review.
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 has not engaged in substantial
gainful activity at any time during the period at issue; (2) during
the period at issue, the plaintiff has evidenced the following
medically determinable impairments that, either individually or in
combination, are “severe” and have significantly limited her ability
to perform basic work activities for a period of at least 12
consecutive months: multilevel (cervical, lumbar, and thoracic)
degenerative changes of the spine, and minimal osteoarthritic
changes of the right wrist; (3) during the period at issue, none of
the plaintiff’s impairments, whether considered individually or in
combination, met or medically equaled the severity of any of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4)
throughout the period at issue, the plaintiff has remained capable
of returning to her “vocationally relevant” past employment as a
classified ad clerk, either as previously performed by her or as
generally
performed
within
the
national
2
economy;
and
(5)
the
plaintiff has also remained capable throughout such period of
performing other jobs that are available in significant numbers
within the national economy.
Therefore, the ALJ found that the
plaintiff has not been under a disability, as defined in the Social
Security Act, at any time during the period at issue.
The plaintiff then filed a request for judicial review of the
ALJ’s decision in this Court.
The case was referred to United
States Magistrate Judge Michael John Aloi.
Both parties filed
motions for summary judgment. After consideration of those motions,
the
magistrate
plaintiff’s
judge
motion
entered
for
a
summary
report
judgment
recommending
be
denied,
that
the
that
the
defendant’s motion for summary judgment be granted, and that the
case be dismissed with prejudice.
The plaintiff filed timely
objections to the report and recommendation.
The defendant then
filed a response to the plaintiff’s objections.
II.
Applicable Law
Because the plaintiff timely filed objections to the report
and recommendation, the magistrate judge’s recommendation will be
reviewed de novo as to those findings to which objections were
made.
28 U.S.C. § 636(b)(1)(C).
As to those findings to which
objections were not made, the findings and recommendations will be
upheld unless they are “clearly erroneous or contrary to law.”
U.S.C. § 636(b)(1)(A).
3
28
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)).
The plaintiff argues in her motion for summary judgment that
the
ALJ’s
decision
is
not
supported
by
substantial
evidence.
Specifically, the plaintiff argues that (1) the ALJ’s failure to
explain why she found the plaintiff limited to sitting for four
hours in a workday instead of for six hours requires remand for
explanation; (2) that failure further caused the ALJ to fail to
provide the vocational expert with an accurate hypothetical; (3) the
ALJ erred in finding that no acceptable medical source indicated
that the plaintiff suffered from depression and/or anxiety; and (4)
4
that failure further caused error at steps two, three, and four in
the ALJ’s evaluation of the plaintiff’s impairments and limitations.
The plaintiff requests that her case be remanded for the calculation
of benefits.
The defendant argues in its motion for summary judgment that
the ALJ’s decision is supported by substantial evidence and should
be affirmed as a matter of law.
Specifically, the defendant argues
that (1) the plaintiff’s first argument lacks merit because it is
based on a misstatement of the ALJ’s residual functional capacity
(“RFC”) determination and an incorrect interpretation of the state
agency opinions; (2) there is no merit to the plaintiff’s argument
regarding the hypotheticals at step five because the analysis
concluded at step four, and, moreover, because the vocational expert
identified jobs in response to a hypothetical that did set out all
of
the
plaintiff’s
impairments,
the
outcome
would
not
change
regardless; (3) contrary to the plaintiff’s assertion, the ALJ did
not find that no acceptable medical source had diagnosed the
plaintiff with anxiety or depression; rather, the ALJ properly found
that the nurse who had diagnosed the plaintiff with depression was
not an “acceptable medical source” as defined by the regulations;
and (4) after finding as such, the ALJ reviewed the medical evidence
as to depression and explained why she found that it did not
constitute a severe impairment of 12-month duration under the Act.
5
In
his
report
and
recommendation,
the
magistrate
judge
concludes that the ALJ’s decision is supported by substantial
evidence.
In reaching that conclusion, the magistrate judge first
found that the ALJ’s RFC determination was not inconsistent with the
agency reviewers’ RFC determination.
Specifically, the magistrate
judge found that, because the ALJ found that the plaintiff could not
stand and walk as often as required for light work, the ALJ
appropriately found that the plaintiff was capable of performing a
limited range of light work, limited specifically in that she could
stand and walk for no more than four hours.
Second, the magistrate
judge found that the ALJ’s finding that depression was not a severe
impairment was not based on the lack of diagnosis by an acceptable
medical provider.
Rather, the ALJ recognized that an acceptable
medical source did treat the plaintiff for depression, but observed
that the acceptable medical source’s evidence did not support a
sufficient level of severity, nor did it support the duration
requirement.
Lastly, the magistrate judge found that the ALJ’s
decision does not lack substantial evidentiary support.
In
her
objections,
the
plaintiff
first
argues
that
the
magistrate judge’s position illustrates the plaintiff’s position
that she was limited to jobs that required six hours of sitting,
which would significantly erode, if not eliminate, the occupational
base
of
light
work.
Second,
the
plaintiff
argues
that
the
magistrate judge’s support for the ALJ’s analysis of the plaintiff’s
6
depression is based on legal and factual errors.
Specifically, the
plaintiff notes that her condition has lasted over 12 months; that
her moderate limitations are shown in the record; and that the
magistrate judge is incorrect because her depression was found “nonsevere” only after the ALJ improperly rejected treatment by a nurse
practitioner that was corroborated by Dr. Nugent, an acceptable
medical source.
The plaintiff also contends that the magistrate
judge is incorrect because the record does show moderate functional
limitations
stemming
from
her
depression.
Specifically,
the
plaintiff contends that she was limited to more than “mild” social
functioning and that treating source evidence from the United Summit
Center contradicts Dr. Bickham.
In response to the plaintiff’s objections, the defendant argues
that the issues set forth in the plaintiff’s objections have already
been fully presented and addressed by the parties in their written
submissions.
forth
in
the
Commissioner’s
reasoning
Thus, the defendant “relies upon the reasoning set
ALJ’s
decision,
brief
in
contained
in
Recommendation.”
the
support
the
of
arguments
summary
Magistrate
ECF No. 19 at 2.
expressed
judgment,
Judge’s
in
the
and
the
Report
and
However, the defendant adds
that, for the first time in her objections, the plaintiff identifies
evidence of her subjective complaints of depressive symptoms,
diagnosis
of
depression,
and
treatment
with
anti-depression
medication in support of her assertion that her depression lasted
7
more than 12 months.
The defendant further adds that the plaintiff
is mistaken in her assertion that the assessment of moderate
symptoms in a global assessment of functioning (“GAF”) score (a
measure of overall functioning) contradicts the ALJ’s finding that
her depression resulted in only mild difficulties in maintaining
concentration, persistence, or pace.
The defendant contends that
the issue is not whether there is evidence that contradicts Dr.
Bickham’s opinion, but whether the ALJ’s decision is supported by
substantial evidence.
On de novo review, this Court finds that the ALJ’s decision is
supported by substantial evidence.
First, the magistrate judge is
correct that the ALJ’s RFC determination was not inconsistent with
the agency reviewers’ RFC determination. The plaintiff claims that,
for the ALJ’s RFC determination to be consistent with the agency
reviewers’ RFC determination, the ALJ’s RFC determination needed to
include a limitation of sitting for up to six hours.
This Court
agrees with the magistrate judge that the plaintiff’s contention is
not an accurate statement of the agency reviewers’ findings.
The
agency reviewers opined that the plaintiff could sit (with normal
breaks) for a total of “[a]bout 6 hours in an 8-hour workday.”
No. 7-3 at 9 and 34.
ECF
Thus, the agency reviewers did not opine that
the plaintiff must be able to sit for six hours.
Rather, they
opined that the most the plaintiff could sit was for six hours in
an eight-hour workday.
This Court also agrees with the magistrate
8
judge that, when the agency reviewers opined that plaintiff could
“[s]tand and/or walk (with normal breaks) for a total of[] 4
hours,” they were opining that the most the plaintiff could stand
or walk was for four hours in an eight-hour workday.
Id.
Thus,
this Court finds that the ALJ appropriately found the plaintiff to
be capable of performing a “limited range” of light work, limited
specifically in that she could stand and walk for no more than four
hours.
Second, the magistrate judge is also correct that the ALJ’s
finding that depression was not a severe impairment was not based
on the lack of a diagnosis by an acceptable medical provider.
The
ALJ explicitly recognized that the plaintiff saw a qualified medical
source on May 28, 2015, but observed that the acceptable medical
source’s evidence did not support either a sufficient level of
severity
or
the
duration
requirement.
ECF
No.
7-2
at
27.
Furthermore, neither the ALJ nor any other psychological source
found more than mild limitations to concentration.
Lastly,
the
magistrate
judge
is
correct
that
the
ALJ’s
decision does not lack substantial evidentiary support.
The
magistrate judge notes that the ALJ found at step four of the fivestep evaluation process that the plaintiff could return to her past
work, and any step four error is precluded because the plaintiff
failed
to
raise
determination.
any
cognizable
issue
with
the
ALJ’s
RFC
Additionally, the magistrate judge notes that the
9
vocational expert was able to name jobs that the plaintiff could
still perform for every hypothetical. Thus, this Court agrees with
the magistrate judge that, in the absence of any successful
challenge to the RFC, the plaintiff cannot prevail at step four or
step five of the ALJ’s five-step evaluation process.
Accordingly, on de novo review, this Court finds that the
ALJ’s
determination
should
be
upheld,
as
recommended
by
the
magistrate judge.
IV.
Conclusion
For the reasons set forth above, the magistrate judge’s report
and
recommendation
(ECF
No.
14)
is
AFFIRMED
and
ADOPTED.
Accordingly, the defendant’s motion for summary judgment (ECF No.
11) is GRANTED, the plaintiff’s motion for summary judgment (ECF
No. 9) is DENIED, and the plaintiff’s objections to the report and
recommendation (ECF No. 16) are OVERRULED. It is ORDERED that this
civil action be DISMISSED WITH PREJUDICE and STRICKEN from the
active docket of this Court.
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.
10
DATED:
February 21, 2018
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
11
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