Siburt v. Commissioner of the Social security Administration

Filing 19

MEMORANDUM OPINION AND ORDER DECLINING TO AFFIRM AND ADOPT 14 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE, SUSTAINING 15 DEFENDANTS OBJECTIONS, GRANTING 12 DEFENDANTS MOTION FOR SUMMARY JUDGMENT, AND DENYING 11 PLAINTIFFS MOTION FOR SUMMARY JUDGMENT. It is further ORDERED that this case be DISMISSED and STRICKEN from the active docket. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 9/12/2018. (copy to counsel via CM/ECF) (nmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ROBERT W. SIBURT,
Plaintiff,
v.

Civil Action No. 5:17CV113
(STAMP)

NANCY A. BERRYHILL,
Deputy Commissioner of
Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
DECLINING TO AFFIRM AND ADOPT REPORT
AND RECOMMENDATION OF MAGISTRATE JUDGE,
SUSTAINING DEFENDANT’S OBJECTIONS,
GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT,
AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
I.

Procedural History

On June 27, 2013, the plaintiff, Robert Wiley Siburt, filed an
application under Title II of the Social Security Act for a period
of disability and disability insurance benefits (“DIB”) and an
application for supplemental security income (“SSI”) under Title
XVI of the Social Security Act.

In the application, the plaintiff

alleges disability that began on May 31, 2013.

Plaintiff states

that his “impairments include: degenerative disc disease of the
cervical and lumbar spine; history of cerebrovascular accident;
anxiety disorder; major depressive disorder; post-traumatic stress
disorder (PTSD); bereavement; alcohol use disorder; and anxiolytic
use disorder.”

ECF No. 11 at 3.

The

Social

Security

Administration

(“SSA”)

denied

the

plaintiff’s application initially on October 15, 2013 and on
reconsideration on January 27, 2014.

The plaintiff then appeared

with counsel at a hearing before an Administrative Law Judge
(“ALJ”) on December 3, 2015.

At the hearing, the plaintiff,

represented by counsel, testified on his own behalf, as did an
impartial

vocational

expert.

The

ALJ

issued

an

unfavorable

decision to the plaintiff on March 1, 2016, finding that he was not
disabled under the Social Security Act.

The plaintiff then timely

filed an appeal of the decision to the Appeals Council.

On May 20,

2017, the Appeals Council denied the plaintiff’s request for
review. Plaintiff filed a written request for a hearing, which was
held before a United States Administrative Law Judge (“ALJ”) in
Morgantown, West Virginia.
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 claimant meets the insured status requirements
of the Social Security Act through December 31, 2018.
2.
The claimant has not engaged in substantial gainful
activity since May 31, 2013, the alleged onset date (20
CFR 404.1571 et seq.).
3.
The claimant has the following sever impairments:
degenerative disc disease of the cervical and lumbar
spine; history of cerebrovascular accident; anxiety
disorder; major depressive disorder; post-traumatic
stress disorder (“PTSD”); bereavement; alcohol use
disorder;
and
anxiolytic
use
disorder
(20
CFR
404.1520(c)).
2

4.
The claimant 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 and 404.1526).
5.
The claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) (i.e.
is able to occasionally lift and/or carry 20 pounds;
frequently lift and/or carry 10 pounds; stand and/or
walk, with normal breaks, for a total of about 6 hours in
an 8-hour workday; sit, with normal break, for a total of
about 6 hours in an 8-hour workday; with an unlimited
ability to push and/or pull), except the claimant can
only occasionally climb ladder, ropes, scaffolds, ramps,
or stairs, balance stoop, kneel crouch, or crawl; must
avoid moderate or occasional exposure to extreme cold,
extreme heat, excessive vibration, and hazards (such as
dangerous moving machinery and unprotected heights); is
limited to simple, routine, and repetitive tasks, in a
low stress job, defined as having only occasional
decision making required, occasional changes in the work
setting, and no strict production quotas; is capable of
only occasional interaction with the general public,
coworkers, and supervisors; and must be afforded the
opportunity for brief, one to two minute, changes of
positions, at intervals not to exceed thirty minutes.
6.
The claimant is unable to perform any past relevant
work (20 CFR 404.1565).
7.
The claimant was born on December 21, 1964 and was
48 years old, which is defined as a younger individual
age 18-49, on the alleged disability onset date (20 CFR
404.1563).
8.
The claimant has at least a high school education
and is able to communicate in English (20 CFR 404.1564).
9.
Transferability of job skills is not material to the
determination
of
disability
because
using
the
Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled,” whether or
not the claimant has transferable job skills (See SSR
82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant’s age, education, work
experience, and residual functional capacity, there are
3

jobs that exist in significant numbers in the national
economy that the claimant can perform (20 CFR 404.1569
and 404.1569(a)).
11. The claimant has not been under a disability, as
defined in the Social Security Act, from May 31, 2013,
through the date of this decision (20 CFR 404.1520(g)).
ECF No. 7-2 at 18-30.
Therefore, the ALJ found that “[b]ased on the application for
a period of disability and disability insurance benefits filed on
June 27, 2013, the claimant is not disabled under sections 216(i)
and 223(d) of the Social Security Act.”

ECF No. 7-2 at 30.

The plaintiff, by counsel, filed a complaint for judicial
review of the ALJ’s decision and final decision of defendant, Nancy
A. Berryhill, Deputy Commissioner of Social Security, in this Court
pursuant to 42 U.S.C. § 405(g).

The case was referred to United

States Magistrate Judge Michael John Aloi.
motions

for

summary

judgment.

ECF

Both parties filed

Nos.

11,

12.

After

consideration of those motions and the administrative record, the
magistrate judge entered a report and recommendation.

ECF No. 14.

The plaintiff argues in his motion for summary judgment that
the

defendant’s

decision

is

contrary

supported by substantial evidence.

to

the

law

and

is

not

Specifically, the plaintiff

contends that: (1) the ALJ erred by “failing to find the claimant’s
sciatica to be a ‘severe’ impairment within the meaning of the
regulations;” (2) the ALJ erred by “erroneously rel[ying] on the
assessment of the state agency consultant”; (3) the ALJ erred by

4

finding that plaintiff can perform light work is not based on
substantial evidence; and (4) the ALJ erred because credibility
determination
evidence.

of

plaintiff

is

not

supported

by

substantial

ECF No. 11 at 9-15.

The defendant argues in her motion for summary judgment that
the decision is supported by substantial evidence and should be
affirmed as a matter of law.

Specifically, the defendant contends

that: (1) the ALJ’s decision was correct because “disability as
defined by the act and regulations is stringent;” and (2) the ALJ’s
decision was based on substantial evidence because it “supports the
ALJ’s decision that Plaintiff could perform a range of unskilled,
light work and, thus, [Plaintiff] was not disabled.”
In

the

report

and

recommendation,

the

ECF No. 12.

magistrate

judge

analyzed the ALJ’s decision and addressed the parties’ contentions
in turn.
First,

the

magistrate

judge

addresses

the

plaintiff’s

allegation that the ALJ committed reversible error by failing to
find plaintiff’s sciatica a “severe impairment” within the meaning
of 20 C.F.R. 404.1505(a).

The magistrate judge found that “it was

not error for the ALJ to find Plaintiff’s sciatica non-severe, in
and of itself, because the ALJ considered the combined effect of
Plaintiff’s designated severe impairments and non-severe sciatica
(lower back pain).”

ECF No. 14 at 45.

5

Second,

the

magistrate

judge

addresses

the

plaintiff’s

argument that “the ALJ mischaracterized Plaintiff’s ability to
perform his daily activities and that his minimal daily activities
are not representative of his ability to perform work activity.”
ECF No. 14 at 45.

The magistrate judge noted that “the ALJ focused

on Plaintiff’s abilities to perform daily activities, but did not
consider the extent that those activities are performed and the
successfulness of each of those activities.”

ECF No. 14 at 50.

The

ALJ’s

magistrate

determination,

judge,
found

after
that

reviewing

“the

ALJ’s

the

credibility

consideration

that

a

particular daily activity is initiated alone does not render her
credibility determination to be based on substantial evidence.”
ECF No. 14 at 50.

The magistrate judge further states that “[t]he

ALJ should have considered how successful Plaintiff was at these
activities and whether there were any changes in his abilities to
complete

these

daily

activities.”

ECF

No.

14

at

50.

The

magistrate judge states that “the ALJ explicitly considered that
Plaintiff attempted those activities and made no mention of the
fact Plaintiff could not do some of them anymore and actually had
to hire other people to complete these daily activities.”
14 at 50.

ECF No.

“Until this has been considered, the [magistrate judge]

does not consider the credibility to be based on substantial
evidence and recommends that the District Court remand this portion
of the case to the ALJ to consider whether Plaintiff’s inability to

6

complete these tasks affects the credibility determination.”

ECF

No. 14 at 50.
Third, the magistrate judge addresses the plaintiff’s argument
that the ALJ erred by assigning great weight to the assessment of
the state agency consultant because the state agency did not
examine the entirety of the medical records.

ECF No. 14 at 50-51.

The magistrate judge, after reviewing the record, found that “the
ALJ did not err in her decision to assign great weight to the
opinion of Dr. Lauderman, a non-examining source,” and adds that
“the ALJ provided a sufficiently explained rationale when assigning
great weight to Dr. Lauderman’s medical opinion.”
at

51.

Additionally,

the

magistrate

judge

ECF No. 14

addressed

the

plaintiff’s argument that “the ALJ should not have relied on Dr.
Lauderman’s Residual Functional Capacity (“RFC”) assessment because
Dr. Lauderman did not, and could not, rely on the totality of
Plaintiff’s medical records.”

ECF No. 14 at 52.

In his review,

the magistrate judge found that “no significant change occurred in
the Plaintiff’s condition from the RFC’s issuance (2014) to the
ALJ’s decision (2016),” and that “ALJ’s determination of whether
the RFC’s determination was reliable due to his mental conditions
was adequately addressed throughout the ALJ’s opinion.” ECF No. 14
at 52, 53.
ALJ’s

Ultimately, the magistrate judge found that “that the

decision

consultant’s

to

assign

medical

great

opinion

is

7

weight

to

the

appropriately

state
and

agency

properly

supported by substantial evidence in the medical record.”

ECF No.

14 at 55.
Fourth,

the

magistrate

judge

addresses

the

plaintiff’s

argument that “the ALJ grossly underestimated the severity and RFC
impact of his mental impairments.”

ECF No. 14 at 59.

The

magistrate judge found that “the ALJ’s written decision makes it
clear that Plaintiff’s mental impairments, including the potential
effect of Plaintiff’s suicide attempt and bereavement from his
son’s passing, were substantially considered,” and adds that “[t]he
ALJ further supported her functional findings by considering the
totality of Plaintiff’s mental impairments.”

ECF No. 14 at 59.

However, in turning to the ALJ’s credibility determination, the
magistrate judge found that “because this determination is partly
assessed

using

Plaintiffs

allegations

concerning

his

own

impairment, whether this was based on substantial evidence cannot
be fully evaluated until the ALJ properly considers all factors of
the credibility.”

ECF No. 14 at 60.

For these reasons, the magistrate judge recommended that
plaintiff’s motion for summary judgment (ECF No. 11) be granted in
part and defendant’s motion for summary judgment (ECF No. 12) be
denied, and the decision of the Deputy Commissioner be vacated and
this case be remanded.

ECF No. 14 at 60.

The magistrate judge then advised the parties that,
Any party may, within fourteen (14) days after being
served with a copy of this Report and Recommendation,
8

file with the Clerk of the Court written objections
identifying the portions of the Report and Recommendation
to which objections are made, and the basis for such
objections. A copy of such objections should also be
submitted to the Honorable Frederick P. Stamp, United
States District Judge. Failure to timely file objections
to the Report and Recommendation set forth above will
result in waiver of the right to appeal from a judgment
of this Court based upon such Report and Recommendation.
28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140
(1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985);
United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).
ECF No. 14 at 60.
The defendant filed objections to the magistrate judge’s
report and recommendation (ECF No. 15) and the plaintiff responded
to the defendant’s objections (ECF No. 18).
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.

Discussion

As the United States Court of Appeals for the Fourth Circuit
has held, “Under the Social Security Act, [a reviewing court] must
9

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)).
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.
Upon

review

of

the

magistrate

judge’s

report

and

recommendation and the underlying record in this civil action, this
Court

finds

no

clear

error

as

to

those

recommendation to which no objection was made.
the

appropriate

standard

of

review,

the

portions

the

Accordingly, under
magistrate

findings, to which no objections were made are upheld.

10

of

judge’s

However, this Court has conducted a de novo review of those
portions

of

the

recommendation

to

which

the

defendant

filed

objections. To the extent the defendant specifically objects to the
magistrate

judge’s

finding

that

substantial

evidence

did

not

support the ALJ’s credibility analysis (ECF No. 15 at 2), this
Court finds that it is appropriate to sustain the defendant’s
objection and thus, decline to adopt the recommendation of the
magistrate judge.
In his report and recommendation in regard to the ALJ’s
credibility assessment, the magistrate judge found that “the ALJ
focused on Plaintiff’s abilities to perform daily activities, but
did not consider the extent that those activities are performed and
the successfulness of each of those activities.” ECF No. 14 at 50.
The magistrate judge added that “the ALJ’s consideration that a
particular daily activity is initiated alone does not render her
credibility determination to be based on substantial evidence” and
adds

that

“[t]he

ALJ

should

have

considered

how

successful

Plaintiff was at these activities and whether there were any
changes in his abilities to complete these daily activities.”
No. 14 at 50.

ECF

The magistrate judge found that the ALJ properly

considered the plaintiff’s activities but “made no mention of the
fact Plaintiff could not do some of them anymore and actually had
to hire other people to complete these daily activities.”

11

ECF No.

14

at

50.

The

magistrate

judge

concluded

that

the

ALJ’s

credibility assessment was not based on substantial evidence.

Id.

The defendant filed objections, asserting that the magistrate
judge erred by finding that substantial evidence did not support
the ALJ’s credibility analysis.

ECF No. 15 at 2.

Particularly,

“the Commissioner objects to Section IV.C.2 of the R&R (pp. 45-50),
wherein the magistrate judge found that the ALJ erred in her
credibility analysis, and section IV.C.4 of the R&R (pp. 55-60), to
the extent that the magistrate judge found that the ALJ’s residual
functional capacity (RFC) assessment was flawed due to the ALJ’s
purported error in the credibility.”

ECF No. 15 at 1.

This Court

has reviewed the defendant’s objections and finds that defendant
essentially asserts one objection as to the magistrate judge’s
findings regarding the ALJ’s credibility analysis.
The plaintiff responded to the defendant’s objections.

ECF

No. 18. The plaintiff contends that the magistrate judge correctly
concluded that the ALJ’s credibility determination of plaintiff’s
abilities

was

not

based

on

substantial

evidence

and

that

defendant’s objections to the report and recommendation should be
denied and the case remanded.

ECF No. 18 at 1.

An ALJ’s findings will be upheld if supported by substantial
evidence.

See Milburn Colliery Co. v. Hicks, 138 F.3d 524, 528

(4th Cir. 1998). Substantial evidence is that which a “reasonable
mind might accept as adequate to support a conclusion.”

12

Hays v.

Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (quoting Richardson
v.

Perales,

402

U.S.

389,

401

(1971)).

In

reviewing

for

substantial evidence, the court does not undertake to reweigh
conflicting

evidence,

make

credibility

substitute our judgment for that of the ALJ.

determinations,

or

Hancock v. Astrue,

667 F.3d 470, 472 (4th Cir. 2012) (brackets, citation, and internal
quotation

marks

omitted).

“Where

conflicting

evidence

allows

reasonable minds to differ as to whether a claimant is disabled,
the responsibility for that decision falls on the ALJ.”

Id.

Further, the “possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative agency’s
findings from being supported by substantial evidence.”

Sec’y of

Labor v. Mutual Mining, Inc., 80 F.3d 110, 113 (4th Cir. 1996)
(quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966)).
On

de

novo

review,

this

Court

finds

that

in

regard

plaintiff’s credibility, the ALJ stated as follows:
Turning to the claimant’s credibility, while the
undersigned acknowledges that the claimant has a
consistent work history, the undersigned has also
considered the claimant’s daily living activities, and
finds that such activities do not support the presence of
debilitating functional limitations.
Indeed, as
discussed above, the claimant participates in fairly
significant daily living activities, including caring for
his teenage daughter, cooking basic meals, performing
yard work, performing light household chores, using a
riding lawn mower, shopping in stores, watching
television, attending church, and getting outside every
other day (Exhibit 3E). Overall, the undersigned finds
these activities consistent with the ability to perform
unskilled light work.

13

to

ECF No. 7-2 at 28.
The ALJ found that “[t]he above factors detract from the
credibility of the claimant’s allegations concerning the severity
of his symptoms.”

ECF No. 7-2 at 28.

While the ALJ acknowledged

that “[t]he foregoing evidence does indicate the claimant to have
impairments,

which

are

likely

to

impose

some

functional

limitations,” the ALJ ultimately concluded that “these findings are
not indicative of any intractable condition that would preclude the
claimant from performing unskilled work activity at the light level
for 12 consecutive months.”

ECF No. 7-2 at 28.

The ALJ expressly

acknowledged the plaintiff’s treatment history, stating that it
“fails to demonstrate a condition of the degree of severity which
the claimant has alleged”.

ECF No. 7-2 at 28.

Further, the ALJ

explicitly referenced the plaintiff’s daily living activities,
finding that the activities “are not limited to the extent one
would expect, given his complaints of disabling symptoms and
limitations.”

ECF No. 7-2 at 28.

Accordingly, the ALJ determined

that the “claimant’s credibility is, at best, fair.”

ECF No. 7-2

at 28.
Because the ALJ has the opportunity to observe the demeanor of
the claimant, the ALJ’s observations concerning the claimant’s
credibility are given great weight.
987, 989–90 (4th Cir. 1984).

Shively v. Heckler, 739 F.2d

This Court has determined that “[a]n

ALJ’s credibility determinations are ‘virtually unreviewable’ by

14

this Court.”

Ryan v. Astrue, No. 5:09cv55, 2011 WL 541125, at *3

(N.D. W. Va. Feb. 8, 2011).

If the ALJ meets the basic duty of

explanation, “[w]e will reverse an ALJ’s credibility determination
only

if

the

claimant

can

show

it

was

‘patently

wrong.’”

Sencindiver v. Astrue, No. 3:08cv178, 2010 WL 446174, at *33 (N.D.
W. Va. Feb. 3, 2010) (quoting Powers v. Apfel, 207 F.3d 431, 435
(7th Cir. 2000)).
As the ALJ explained throughout her decision, plaintiff’s
credibility was undermined not only by his ability to perform daily
activities, but also by the other 20 C.F.R. § 404.1529(c) factors,
including the objective medical evidence, location, duration, and
intensity of his pain and symptoms, precipitating and aggravating
factors, the type, dosage, effectiveness, and side effects of any
medication, treatment, and measures to relieve his pain.

On de

novo review, this Court finds that the ALJ’s explanation of her
conclusions on the plaintiff’s credibility is adequate and that the
ALJ’s

credibility

determination

is

supported

by

substantial

evidence.
This Court has reviewed the record, as well as the parties’
motions for summary judgment, and, after a de novo review, this
Court finds that substantial evidence supports the ALJ’s findings.
Accordingly, this Court declines to adopt and affirm the magistrate
judge’s

report

and

recommendation,

sustains

objections, and affirms the decision of the ALJ.

15

the

defendant’s

IV.

Conclusion

For the reasons set forth above, this Court declines to adopt
the report and recommendation of the magistrate judge (ECF No. 14)
and

sustains

defendant’s

recommendation (ECF No. 15).

objections

to

the

report

and

Accordingly, defendant’s motion for

summary judgment (ECF No. 12) is GRANTED, and the plaintiff’s
motion for summary judgment (ECF No. 11) 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 memorandum
opinion

and

order

to

counsel

of

record

herein

and

to

the

Commissioner of Social Security. Pursuant to Federal Rule of Civil
Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.
DATED:

September 12, 2018

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

16