Johns v. Commissioner Of Social Security Administration

Filing 16

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 15 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE: 12 Defendant's Motion for Summary Judgment is DENIED; 10 Plaintiff's Motion for Summary Judgment is GRANTED IN PART and DENIED IN P ART, and the Commissioner's decision is VACATED and REMANEDED for further proceedings. It is ORDERED that this civil action be DISMISSED and STRICKEN from the active docket. Because both parties failed to object, both the defendant and the plaintiff have waived the 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 10/17/2018. (copy to counsel via CM/ECF) (nmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
THOMAS JAMES JOHNS,
Plaintiff,
v.

Civil Action No. 5:18CV37
(STAMP)

NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.

Background

The plaintiff, Thomas James Johns, by counsel, seeks judicial
review of the above-named defendant’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 in October 2014,
alleging disability beginning April 14, 2014. His claim was denied
initially and again upon reconsideration. The plaintiff then filed
a written request for a hearing, and a hearing was held before the
Administrative Law Judge (“ALJ”) in Morgantown, West Virginia. The
plaintiff, represented by counsel, and an impartial vocational
expert appeared at the hearing.

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 timely brought his claim before this Court.
The

ALJ

used

a

five

step

sequential

evaluation

process

pursuant to 20 C.F.R. §§ 404.1520 and 416.920 to determine whether
plaintiff is disabled.

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, 2015;
(2) The claimant has not engaged in substantial gainful activity
since April 14, 2014, the alleged onset date (20 C.F.R. § 404.1571
et seq., and § 416.971 et seq.); (3) The claimant has the following
severe impairments: degenerative disc disease; anxiety disorder
(agoraphobia);

depression

(20

C.F.R.

§§

404.1520(c)

and

416.920(c)); (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 C.F.R. Part 404,
Subpart

P,

Appendix

1

(20

C.F.R.

§§

404.1520(d),

404.1525,

404.1526, 416.920(d), 416.925 and 416.926); (5) That the claimant
has the residual functional capacity to perform light work as
defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) performing all
postural movements, crouching and crawling occasionally, except
never climbing ladders, ropes or scaffolds; with an allowance to
sit or stand, briefly (for two minutes) alternating position every
30 minutes without going off task; no more than occasional contact
with coworkers and supervisors and no in-person contact with the

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general

public;

once

work

is

assigned

should

be

able

to

be

performed without working in coordination with other employees;
work should be low stress in nature in that it does not involve
rapid production or assembly line work and has limited decisionmaking responsibility; (6) The claimant is unable to perform any
past relevant work (20 C.F.R. §§ 404.1565 and 416.965); (7) The
claimant was born on October 14, 1982 and was 31 years old, which
is defined as a younger individual age 18-49, on the alleged
disability onset date (20 C.F.R. §§ 404.1563 and 416.963); (8) The
claimant has at least a high school education and is able to
communicate in English (20 C.F.R. §§ 404.1564 and 416.964); (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 S.S.R.
82-41

and

20

C.F.R.

Part

404,

Subpart

P,

Appendix

2);

(10)

Considering 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

(20

C.F.R.

§§

404.1569,

404.1569(a),

416.969,

and

416.969(a)).
Therefore, the ALJ found that the plaintiff has not been under
a disability, as defined in the Social Security Act, from April 14,

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2014, through the date of this decision (20 C.F.R. §§ 404.1520(g)
and 416.920(g)).
The plaintiff and the defendant both filed motions for summary
judgment. The plaintiff’s motion for summary judgment (ECF No. 10)
argues that the ALJ’s decision is not supported by substantial
evidence.

Specifically, the plaintiff contends that the ALJ

mischaracterized a host of evidence, that the ALJ did not properly
document the “special technique” in his step-three analysis, and
that the Appeals Council erred by rejecting the opinion of Tony
Goudy, Ph.D., which plaintiff obtained and submitted after the ALJ
issued his decision. Based on these alleged errors, plaintiff asks
this Court to remand the claim for calculation of benefits or for
further proceedings.

The Commissioner argues that the ALJ’s

decision is supported by substantial evidence and asserts that the
ALJ correctly evaluated the evidence and properly documented his
step-three analysis, and thus requests this Court to grant the
motion for summary judgment and affirm the ALJ’s decision.
No.

12.

The

plaintiff

filed

a

response

defendant’s motion for summary judgment.

in

ECF

opposition

to

ECF No. 14.

United States Magistrate Judge Robert W. Trumble then entered
his

report

objections.

and

recommendation,

ECF No. 15.

to

which

neither

party

filed

The magistrate judge found that the

Commissioner’s decision denying plaintiff’s claim for DIB and SSI
is not supported by substantial evidence and recommends that

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plaintiff’s motion for summary judgment (ECF No. 10) be granted in
part and denied in part, defendant’s motion for summary judgment
(ECF No. 12) be denied, and the commissioner’s decision be vacated
and remanded for proceedings.

ECF No. 15 at 15.

For the reasons discussed below, the report and recommendation
of the magistrate judge is AFFIRMED and ADOPTED.

Accordingly, the

defendant’s motion for summary judgment (ECF No. 12) is DENIED and
the plaintiff’s motion for summary judgment (ECF No. 10) is GRANTED
IN PART and DENIED IN PART, and the Commissioner’s decision is
VACATED and REMANDED for further proceedings.
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

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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)).

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 and the parties’ filings, this
Court finds that because the parties did not file any objections to
the report and recommendation, the magistrate judge’s findings and
recommendations will be upheld unless they are “clearly erroneous
or contrary to law.”

28 U.S.C. § 636(b)(1)(A).

In making his recommendations, the magistrate judge first
correctly found that because the ALJ (1) discounted plaintiff’s
Global Assessment of Function (“GAF”) scores based on evidence that
does not exist, (2) did not indicate what weight he gave to Ms.
Straight’s opinion and why, and (3) did not sufficiently explain
what portions of Mr. McCullough’s opinion he discounted and why,

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the magistrate judge correctly determined that the ALJ’s decision
is not supported by substantial evidence and requires remand.

ECF

No. 15 at 15.
Next, the magistrate judge correctly found that the ALJ’s
step-three analysis fails for the same reasons set forth in the
magistrate judge’s report and recommendation at Section V.C.1, and
because substantial evidence does not support the ALJ’s decision to
discount (1) plaintiff’s GAF scores, (2) Ms. Straight’s opinion,
and (3) Mr. McCullough’s opinion—all of which is evidence of
plaintiff’s mental impairments—the magistrate stated that he cannot
conclude that substantial evidence supports the ALJ’s decision that
plaintiff’s mental impairments do not meet or equal a medical
listing.

ECF No. 15 at 13.

On remand, the magistrate correctly

notes that the ALJ must sufficiently discuss the evidence and
explain the underlying reasoning so that meaningful judicial review
is possible.

ECF No. 15 at 13.

Lastly, the magistrate judge

correctly found that because plaintiff has not shown good cause for
submitting new evidence to the Appeals Council, the Council did not
err when it declined to consider the same.

ECF No. 15 at 15.

After reviewing the record and the parties’ filings, this
Court is not “left with the definite and firm conviction that a
mistake has been committed” as to the findings of the magistrate
judge.

United States Gypsum Co., 333 U.S. at 395.

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Therefore, the

report and recommendation of the magistrate judge is AFFIRMED and
ADOPTED in its entirety.
IV.

Conclusion

For the reasons set forth above, the report and recommendation
of the magistrate judge (ECF No. 15) is AFFIRMED and ADOPTED.
Therefore, the defendant’s motion for summary judgment (ECF No. 12)
is DENIED, the plaintiff’s motion for summary judgment (ECF No. 10)
is GRANTED IN PART and DENIED IN PART, and the Commissioner’s
decision is VACATED and REMANDED for further proceedings.

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 both parties failed to object,
both the defendant and the plaintiff have waived the 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.

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DATED:

October 17, 2018

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

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