Blankenship v. Berryhill
Filing
18
MEMORANDUM OPINION AND ORDER: The court OVERRULES plaintiff's 16 Objections to Magistrate Judge Dwane L. Tinsley's 15 Proposed Findings and Recommendation, adopts the factual and legal analysis contained within the PF&R, DENIES plaintif f's 10 Memorandum in Support of Judgment on the Pleadings, AFFIRMS the final decision of the Commissioner, and DISMISSES this matter from the court's active docket. Signed by Senior Judge David A. Faber on 9/28/2018. (cc: counsel of record) (arb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
DON FRANKLIN BLANKENSHIP, JR.
Plaintiff,
v.
Civil Action No: 1:17-03735
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
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 Dwane L. Tinsley 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).
On August 29, 2018, Magistrate Judge Tinsley issued his Proposed
Findings & Recommendation (“PF&R”), recommending that this court
deny Plaintiff’s Memorandum in Support of Judgment on the
Pleadings to the extent plaintiff seeks remand for a more
thorough finding under 20 C.F.R. § 404.1529(d); grant defendant’s
brief in support of the Commissioner’s decision; affirm the
final decision of the Commissioner, and dismiss this matter from
the court’s docket.
In accordance with the provisions of 28 U.S.C. §
636(b)(1)(B), the parties had fourteen days, plus three mailing
days to file objections to Magistrate Judge Tinsley’s PF&R.
On September 13, 2018, plaintiff timely filed objections to
the PF&R.
I.
(ECF No. 16).
Background
Don Franklin Blankenship, Jr. filed the instant DIB
application on January 19, 2014, under Title II of the Social
Security Act, 42 U.S.C. §§ 401–433.
The Social Security
Administration (“SSA”) initially denied plaintiff’s application
on March 5, 2014,(Tr. 93-97), and again upon reconsideration on
March 23, 2014. (Tr. 101-07).
Plaintiff requested and received
a hearing before an Administrative Law Judge (“ALJ”) on May
24,2016. (Tr. 32-56).
The ALJ determined that plaintiff was not
entitled to disability benefits in a decision dated July 27,
2016. (Tr. 12-31).
The Appeals Council denied plaintiff’s
request for review on June 9, 2017, making the ALJ’s decision
the final decision of the Commissioner.
(Tr. 1-5).
Thereafter,
Plaintiff timely filed the present civil action seeking judicial
review under 42 U.S.C. § 405(g).
(ECF No. 2).
A detailed factual description of plaintiff’s ailments and
alleged disability can be found in the Proposed Findings and
2
Recommendation (ECF No. 15) and in the ALJ’s decision.
12-31).
(Tr. at
These descriptions adequately and faithfully summarize
the factual information in the record, making it unnecessary to
detail the medical evidence again.
Therefore, this opinion will
only describe the facts as necessary to address plaintiff’s
specific objection.
II.
Standard of Review
Under 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); Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982)
(holding that the court need not conduct a de novo review when a
party “makes general and conclusory objections that do no direct
the Court to a specific error in the magistrate’s proposed
findings and recommendations.”).
The court’s review is limited to a determination as to
whether there is substantial evidence to support the
Commissioner’s conclusion that plaintiff failed to meet the
conditions for entitlement established by and pursuant to the
3
Social Security Act.
If such substantial evidence exists, the
final decision of the Commissioner must be affirmed.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).
Hays v.
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.
U.S. 389, 401 (1971).
Richardson v. Perales, 402
“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)).
III. Plaintiff’s Objections
Plaintiff objects to the Magistrate Judge’s proposed
finding that the ALJ’s step three determination was supported by
substantial evidence. (EFC No. 16). Specifically, Plaintiff
argues that “the Magistrate Judge supplied his own post hoc
analysis and neglected to follow established Fourth Circuit case
law.” Id. For the reasons discussed below, the court overrules
Plaintiff’s objection to the PF&R.
A. Standard for a Step Three Analysis
Plaintiff objects to the ALJ’s explanation of his decisionmaking process at step three of the sequential evaluation. At
step two, the SSA considers the severity of a claimant’s set of
impairments. 20 C.F.R. § 404.1520(c).
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At step three, the inquiry
is into whether a claimant’s severe impairment or combination of
impairments “meets or equals one of our listings . . . and meets
the duration requirement.” 20 C.F.R. § 404.1520(a)(4)(iii). If
the impairment meets a listing in Appendix 1, then the SSA “will
find that [the claimant is] disabled.” Id.
The referenced
listings appear at 20 C.F.R. part 404, subpart P, Appendix 1,
and represent “descriptions of various physical and mental
illnesses and abnormalities, most of which are categorized by
the body system they affect.” Sullivan v. Zebley, 493 U.S. 521,
529-30 (1990).
A claimant is entitled to a conclusive presumption that he
is impaired if he can show that his condition meets or equals
any of these listed impairments. 20 C.F.R. §§ 404.1520(d) and
416.920(d).
The claimant bears the burden of showing he meets
or medically equals a listed impairment, and that burden
requires the claimant to demonstrate that his impairment either
meets “all of the specified medical criteria” of a given listing
or is “equal in severity to all the criteria for the one most
similar listed impairment.” Zebley, 493 U.S. at 530-31.
An ALJ must set forth the reasons for his step three
determination, as is required throughout the sequential
evaluation process. See Radford v. Colvin, 724 F.3d 288, 295 (4th
Cir. 2013).
An ALJ’s statement that a claimant’s impairment
does not meet a listed impairment, unaccompanied by any findings
5
comparing a claimant’s symptoms to listed criteria, is
insufficient. See id. at 295-96.
However, a court should read
the ALJ decision as a whole to determine whether substantial
evidence supports the step three finding. See Smith v. Astrue,
457 Fed.Appx. 326, 328 (4th Cir. 2011) (citing Fischer-Ross v.
Barnhart, 431 F.3d 729, 733-34 (10th Cir. 2005)).
In sum, an
ALJ’s duty at step three is to provide sufficient analysis to
allow a reviewing court to evaluate whether substantial evidence
supports his findings. See Radford, 724 F.3d at 295.
B. Plaintiff’s Objection for Failure to Provide
Adequate Step Three Explanation
Plaintiff objects to the PF&R and argues that Magistrate
Judge Tinsley “supplied his own post hoc step three analysis
in the PF&R” rather than engaging in substantial evidence
review. (ECF No. 16).
The court overrules the plaintiff’s objection and finds
that the magistrate judge’s review was appropriate in making
the determination of whether the ALJ’s decision as a whole
presented substantial evidence to support the step three
finding.
See, e.g., Smith, 457 Fed.Appx. at 328. (explaining
that ALJ's finding at other steps of sequential evaluation may
provide basis for upholding step three finding).
Thus, the
court determines that the ALJ’s explanation adequately sets
forth his determination that the plaintiff’s impairments did
6
not meet a listed impairment and that his ultimate
determination on that issue is supported by substantial
evidence.
The ALJ’s step three finding is as follows:
With regard to the claimant’s alleged impairments,
the record does not contain medical findings obtained on
clinical examination or special study that are the same
as or equal to any of those listed in any subsection on
the Listings of Impairments. I have reviewed all of the
evidence and conclude that the claimant’s alleged
impairments do not meet or equal the severity of any
listing.
Tr. 19. The ALJ’s conclusion that the record does not reflect
medical
findings
that
support
that
the
claimant
suffers
impairments the same as or equal to the listings in Appendix 1
demonstrates that the plaintiff failed to meet his burden of proof.
See, e.g., Zebley, 493 U.S. at 530-31 (articulating that “for a
claimant to qualify for benefits by showing that his unlisted
impairment, or combination of impairments, is “equivalent” to a
listed impairment, he must present medical findings equal in
severity to all the criteria for the one most similar listed
impairment) (citing 20 C.F.R. § 416.926(a)); see also 20 C.F.R. §§
404.1520(e)-(g) (stating that the claimant bears the burden of
proof until step five). Thus, in light of the plaintiff’s failure
to provide a discussion of the evidence that would support a
conclusion that he satisfied a listing in Appendix 1, the ALJ
adequately set forth the reasons for his step three determination.
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Furthermore, the ALJ’s step three finding is supported because
other
sections
ailments,
and
of
none
the
of
decision
the
articulate
plaintiff’s
the
ailments
plaintiff’s
are
equal
in
severity to a listed impairment. (Tr. 17-23); see, e.g., Johnson
v. Berryhill, No. 2:17-cv-01608, 2018 WL 1096463, at *12 (S.D.W.Va.
Feb. 1, 2018). (holding that although “the ALJ did not specifically
include the discussion of the medical evidence at step three, the
ALJ’s explanation of his step three findings [was] clear from the
decision itself.”).
Finally, the plaintiff disputes the magistrate judge’s
harmless error analysis, which concludes that even if the ALJ’s
step three analysis is inadequate, it can be cured elsewhere in
the decision.
Specifically, the plaintiff argues that there was
not harmless error because “a favorable step three finding could
result in an award of disability benefits.” (ECF No. 16, p.2).
However, a holistic review of the ALJ’s decision supports the
conclusion made by the ALJ judge in his step three analysis that
“the record does not contain medical findings obtained on
clinical examination or special study that are the same as or
equal to any of those listed in any subsection on the Listings
of Impairments.”
(Tr. 19).
Therefore, even if the ALJ were to
make the comparative analysis of how the plaintiff’s ailments
were not the same as or equal to any listing in Appendix 1, the
result would be the same because the plaintiff failed to provide
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evidence that would support a different conclusion.
Accordingly, the magistrate judge’s finding that any lack of
explanation by the ALJ judge would be harmless error in this
case is substantiated.
Thus, after reviewing the weight of objective evidence
included within the ALJ’s decision, (Tr. 17-23), the court
agrees that no prejudice was created by the way in which the ALJ
explained his step three determination.
IV.
Conclusion
Accordingly, for the reasons stated above, the court
OVERRULES plaintiff’s objections to the Magistrate Judge’s
Proposed Findings and Recommendation.
ECF No. 16.
The court
adopts the factual and legal analysis contained within the PF&R,
DENIES plaintiff’s Memorandum in Support of Judgment on the
Pleadings, ECF No. 10, 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 and Order to counsel of record.
IT IS SO ORDERED on this 28th day of September, 2018.
ENTER:
David A. Faber
Senior United States District Judge
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