Green v. Colvin

Filing 25

MEMORANDUM OPINION: The court OVERRULES the plaintiff's 23 Objection to Magistrate Judge Omar J. Aboulhosn's 22 Proposed Findings and Recommendation (PF&R), adopts the factual and legal analysis contained within the PF&R to the extent t hat it is not inconsistent with this Memorandum Opinion, DENIES Plaintiff's 17 Motion for Summary Judgment, GRANTS Defendant's 21 Motion for Judgment on the Pleadings, AFFIRMS the final decision of the Commissioner, and DISMISSES this matter from the court's docket. Signed by Senior Judge David A. Faber on 9/14/2017. (cc: counsel of record) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
TINA LOUISE GREEN,
Plaintiff,
v.

CIVIL ACTION NO. 1:16-08977

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION
This action seeks review of the final decision of the
Commissioner of Social Security, who denied plaintiff’s
application for disability insurance benefits (“DIB”).

By

Standing Order, this case was referred to United States
Magistrate Judge Omar J. Aboulhosn to consider the pleadings and
evidence, and to submit proposed findings of fact and
recommendation for disposition, under 28 U.S.C. § 636(b)(1)(B).
(Doc. No. 4).

On March 30, 2017, Magistrate Judge Aboulhosn

issued Proposed Findings & Recommendation (“PF&R”), recommending
that the court deny Plaintiff’s Motion for Summary Judgment,
grant Defendant’s Motion for Judgment on the Pleadings, and
dismiss this case with prejudice.

(Doc. No. 22).

Under 28 U.S.C. § 636(b)(1)(B), the parties had fourteen
days, plus three mailing days, from the date of the filing of
the PF&R to file objections.
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On April 17, 2017, plaintiff timely filed objections to the
PF&R (Doc. No. 23).

The Government responded three days later.

(Doc. No. 24).
I.

Background
Plaintiff, Tina Louise Green, through counsel, filed the

instant DIB application on September 28, 2012, under Title II of
the Social Security Act, 42 U.S.C. §§ 401–433.

The Social

Security Administration (“SSA”) initially denied plaintiff’s
application and again upon reconsideration.

(Tr. at 98-108).

Plaintiff requested and received a hearing before an
Administrative Law Judge (“ALJ”) held on January 9, 2015 before
the Honorable Benjamin McMillion.

(Tr. at 34-63).

The ALJ

determined that plaintiff was not entitled to disability
benefits in a decision dated April 9, 2015.

(Tr. at 14-33).

Plaintiff filed a request for review by the Appeals Council
and submitted new evidence in support of her claim, which was
incorporated into the administrative record.
307).

(Tr. at 9, 303-

On July 20, 2016, the Appeals Council denied plaintiff’s

request for review, thereby making the ALJ’s decision the final
decision of the Commissioner.

(Tr. at 1–5).

Plaintiff timely filed the present civil action seeking
judicial review under 42 U.S.C. § 405(g) on September 19, 2016.
(Doc. No. 2).

On March 30, 2017, the PF&R recommended that the

court deny Plaintiff’s Motion for Summary Judgment, grant
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Defendant’s Motion for Judgment on the Pleadings, and dismiss
this case with prejudice.
A detailed factual description of plaintiff’s ailments and
alleged disability can be found in the PF&R (Doc. No. 22 at 10–
17) and in the ALJ’s decision (Tr. at 20-26).

These

descriptions adequately and faithfully summarize the factual
information in the entire record, making it unnecessary to
detail the medical evidence once more.

Therefore, this opinion

will only describe the facts as necessary to address plaintiff’s
specific objections.
II.

Standard of Review

Pursuant to Rule 72(b)(3) of the Federal Rules of Civil
Procedure, the district court reviews de novo any part of a
magistrate judge’s disposition to which a party has properly
filed an objection.

However, this court is not required to

review, de novo or under any other standard, the factual or
legal conclusions of the magistrate judge regarding those
portions of the findings or recommendations to which the parties
have addressed no objections.

Thomas v. Arn, 474 U.S. 140, 150

(1985).
The court’s review concerns only whether substantial
evidence supports the Commissioner’s conclusion that plaintiff
failed to meet the conditions for entitlement established by and
pursuant to the Social Security Act.
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If such substantial

evidence exists, the final decision of the Commissioner must be
affirmed.
1990).

Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.

Stated briefly, substantial evidence has been defined as

such relevant evidence, considering the record as a whole, as
might be found adequate to support a conclusion by a reasonable
mind.

Richardson v. Perales, 402 U.S. 389, 401 (1971).

“If

there is evidence to justify a refusal to direct a verdict were
the case before a jury, then there is ‘substantial evidence.’”
Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972)
(quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)).
Supposing error by the Commissioner, this court need not reverse
a decision “where the alleged error clearly had no bearing on
the procedure used or the substance of the decision reached by
the ALJ.”

Ngarurih v. Ashcroft, 371 F.3d 182, 190 n. 8 (4th

Cir. 2004).
III. Plaintiff’s Objections
Plaintiff contends that the March 30, 2017 PF&R issued by
Magistrate Judge Aboulhosn:
(1)

Failed to review and consider the MRI study dated
September 29, 2014 regarding plaintiff’s orthopedic
condition;

(2)

Inadequately considers plaintiff’s complaints and
testimony;

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(3)

Discounts the opinions of plaintiff’s treating
physician, instead placing greater weight on the
opinions of non-examining State agency consultants;

(4)

Identifies jobs that do not properly correspond with
plaintiff’s physical limitations nor to the
hypothetical question posed by the vocational expert;
and

(5)

Improperly emphasizes plaintiff’s part-time work as
conclusory of plaintiff’s lack of disability without
referencing her limitations in these vocations.

See Doc. No. 24.
Notably, plaintiff makes no legal arguments in her
objections and cites no case law, instead challenging the
factual determinations made by both the magistrate judge and the
ALJ.

Moreover, as the Government’s response properly asserts,

plaintiff’s objections “consist entirely of arguments raised in
her opening brief” before Judge Aboulhosn.

Compare Doc. No.23

with Doc. No. 18; see also Doc. No. 24.
Nevertheless, the court briefly addresses each of
plaintiff’s objections in turn.
First, the court considers the ALJ’s failure to include the
September 2014 MRI study conducted by Dr. Harold Cofer on
plaintiff’s lumbar spine in its opinion.

(Doc. No. 23 at 1-2).

Indeed, the ALJ’s opinion does not expressly mention this MRI.
5 

Nevertheless, the PF&R concluded that such an omission
constituted harmless error against the dearth of other evidence
included in the ALJ’s opinion.

(Doc. 22 at 24-25).

After

reviewing the weight of objective evidence included within the
ALJ’s opinion, (Tr. 23, 310, 368, 474, 601, etc.), the court
agrees that no prejudice was created by this omission.

See

Shinseki v. Sanders, 556 U.S. 396, 409 (2009).
Second, plaintiff contends that her personal complaints and
testimony were not adequately considered, alleging her
limitations are not consistent with the work for which the ALJ
deemed she is capable.

(Doc. No. 23 at 2).

However, the Code

of Federal Regulations requires only an analysis of plaintiff’s
physical capabilities as plaintiff’s “residual functional
capacity is the most that you can still do despite your
limitations” in light of all relevant evidence. See 20 C.F.R. §
404.1545(a)(1)(emphasis in original).

Plaintiff asks this court

– as it did before the magistrate judge – to reweigh all
conflicting evidence in this regard.

(Doc. 22 at 26).

This

court refuses to do so and, instead, finds determining the
Commissioner’s conclusions were rational and supported by
substantial evidence.

See Oppenheim v. Finch, 495 F.2d 396, 397

(4th Cir. 1974).
Third, plaintiff continues to contend that the ALJ favored
non-examining State physicians over her treating physician.
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Courts typically “accord ‘greater weight to the testimony of a
treating physician’ because the treating physician has
necessarily examined the applicant and has a treatment
relationship with the applicant.”

Johnson v. Barnhart, 434 F.3d

650, 654 (4th Cir. 2005)(quoting Mastro v. Apfel, 270 F.3d 171,
178 (4th Cir. 2001)).

However, “the ALJ holds discretion to

give less weight to the testimony of a treating physician in the
face of persuasive contrary evidence.”

Hunter v. Sullivan, 993

F.2d 31, 35 (4th Cir. 1992)(per curiam).

The ALJ concluded the

conclusions of plaintiff’s doctor were entitled to “little
weight” and properly justified this departure from the norm.
(Tr. at 25, 45).
Fourth, plaintiff objects to the ALJ’s identification of
jobs available to plaintiff as well as the hypothetical question
delivered to the vocational expert.

Plaintiff again requests

that this court weigh the conflicting evidence in the first
instance. This is not the court’s role on review; rather the
court determines whether the Commissioner’s conclusions were
rational and supported by substantial evidence.
495 F.2d at 397.

See Oppenheim,

Moreover, claimant bears “the risk of

nonpersuasion” yet fails to object with a specific rebuttal to
the testimony of the vocational expert.
538 F.2d 1054, 1057 (4th Cir. 1976).

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Seacrist v. Weinberger,

Fifth and finally, plaintiff objects that the ALJ conducted
an incomplete assessment of plaintiff’s work activities without
considering her limitations in doing such work.
Notwithstanding, the conflicting evidence in this regard, the
court concludes that the Commissioner’s conclusion that
plaintiff retained the residual functional capacity to perform
light work is supported by substantial evidence.

See Oppenheim,

495 F.2d at 397.
Conclusion
Plaintiff suffers from osteoarthritis, neuropathy, type 2
diabetes, depression, and anxiety.

However, to receive

disability benefits, an individual must be unable to engage in
any substantial gainful activity due to his or her impairments.
42 U.S.C. § 423(d)(1)(A).

The ALJ concluded that plaintiff’s

impairments do not prevent her from performing light work.
Despite plaintiff’s specific objections, substantial evidence in
the record supports this conclusion.

As a result, this court

must affirm the final decision of the Commissioner that
plaintiff is not entitled to disability benefits.
Accordingly, for the reasons set forth above, the court
OVERRULES the plaintiff’s objections to Magistrate Judge
Aboulhosn’s PF&R.

The court adopts the factual and legal

analysis contained within the PF&R to the extent that it is not
inconsistent with this Memorandum Opinion, DENIES Plaintiff’s
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Motion for Summary Judgment (Doc. No. 17), GRANTS Defendant’s
Motion for Judgment on the Pleadings (Doc. No. 21), AFFIRMS the
final decision of the Commissioner, and DISMISSES this matter
from the court’s active docket.
The Clerk is directed to forward a copy of this
Memorandum Opinion to counsel of record.
IT IS SO ORDERED on this 14th day of September, 2017.
ENTER:
David A. Faber
Senior United States District Judge

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