Lester v. Berryhill

Filing 23

MEMORANDUM OPINION AND ORDER: The court ADOPTS the 21 Proposed Findings and Recommendation by Magistrate Judge Omar J. Aboulhosn; DENIES plaintiff's 17 request for reversal of the final decision; GRANTS defendant's 20 request to affir m the final decision of the Commissioner; AFFIRMS the final decision of the Commissioner; DISMISSES the case; and directs the Clerk to remove the case from the court's docket. Signed by Senior Judge David A. Faber on 9/25/2019. (cc: counsel of record and any unrepresented parties) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
PATSY LESTER for
CHRISSY DAWN LESTER,
Deceased,
Plaintiff,
v.

CIVIL ACTION NO. 1:18-00906

ANDREW SAUL ∗,
Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
By Standing Order, this action was referred to United
States Magistrate Judge Omar J. Aboulhosn for submission of
findings and recommendations regarding disposition, pursuant to
28 U.S.C. § 636(b)(1)(B).

Magistrate Judge Aboulhosn submitted

to the court his Proposed Findings and Recommendation (“PF&R”)
on October 23, 2018, in which he recommended that the district
court deny plaintiff’s request to reverse the final decision;
grant defendant’s request to affirm the final decision of the
Commissioner; affirm the final decision of the Commissioner; and
dismiss and remove this case from the court’s docket.
∗

Pursuant to Federal Rule of Civil Procedure 25(d), Andrew
Saul, Commissioner of Social Security, has been added as a
party. Nancy A. Berryhill’s term expired on June 4, 2019,
and she has been terminated as a party.

I.

Background
The deceased, Chrissy Dawn Lester, (hereinafter referred to

as “claimant”), filed her application for Title II benefits on
April 23, 2014, alleging disability since December 30, 2013,
because of “diabetes, left knee dislocation, bad nerves,
depression, anxiety, bronchial asthma, and peripheral arterial
disease.”

(Tr. at 3050).

Her claim was initially denied on

September 9, 2014, (Tr. at 2920-24), and again upon
reconsideration on March 18, 2015.

(Tr. at 2926-28).

On April

16, 2015, claimant filed a written request for hearing.
2929).

(Tr. at

An administrative hearing was held on August 9, 2016

before the Honorable Michael E. Mance, Administrative Law Judge
(“ALJ”).

(Tr. at 2859-87).

On December 7, 2016, the ALJ

entered an unfavorable decision.

(Tr. at 2731-51).

On February

10, 2017, claimant sought review by the Appeals Council of the
ALJ’s decision.

(Tr. at 3013).

The ALJ’s decision became the

final decision of the Commissioner on March 22, 2018, when the
Appeals Council denied Claimant’s Request.

(Tr. at 1-7).

Claimant passed away on March 28, 2018.

(ECF No. 1, at 3).

On May 9, 2018, Patsy Lester, claimant’s mother (hereinafter
referred to as “plaintiff”), acting pro se, timely brought the
present action seeking judicial review of the administrative
decision pursuant to 42 U.S.C. § 405(g).

2

Id.

II.

Plaintiff’s Objections to the PF&R
In accordance with the provisions of 28 U.S.C. § 636(b),

the parties were allotted fourteen days, plus three mailing
days, in which to file any objections to Magistrate Judge
Aboulhosn’s PF&R.

The failure of any party to file such

objections constitutes a waiver of such party’s right to a de
novo review by this court.

See Snyder v. Ridenour, 889 F.2d

1363 (4th Cir. 1989).
On November 5, 2018, plaintiff, acting pro se, filed
objections to the PF&R.

(ECF No. 22).

Plaintiff’s objections

are reproduced in full:
I object to the findings of this case. I know my
daughter was neither able [n]or capable of holding
down a job. If she had been able + capable of working
I would have been the first one to tell her to get out
and earn a living for her and her daughter.
[Claimant] was severely bipolar plus physical
problems. Yes, [claimant] got addicted to narcotics
due to mental + physical problems and addiction is a
horrible disease it is right up in the class of
terminal cancer both are deadly! The difference is
you have to be severely mentally ill to become an
addict. These doctors write prescriptions to[o]
freely. Especially people on Medicaid + Medicare.
Medicaid + Medicare should stop paying for narcotics
that would make a big dent in the Ophiod [sic]
epidemic in our country. Please reconsider the
findings [claimant] was absolutely disabled.
[Claimant] loved being a nurse. She just wasn’t able
or capable of working. Yes she would attend her
daughters school functions but I was always with her
and done the driving. [Claimant] was in a lot of pain
most of the time that’s why she became an addict.
(Id.)

3

III. Standard of Review of Pro Se Objections
Pursuant to Fed. R. Civ. P. 72(b), the Court must “make a
de novo determination upon the record . . . of any portion of
the magistrate judge's disposition to which specific written
objection has been made.”

However, the Court is not required to

review, under a de novo or any other standard, the factual or
legal conclusions of the magistrate judge as to those portions
of the findings or recommendation to which no objections are
addressed.

See Thomas v. Arn, 474 U.S. 140, 149–50 (1985).

Furthermore, de novo review is not required and unnecessary
“when a party makes general and conclusory objections that do
not direct the court to a specific error in the magistrate's
proposed findings and recommendations.”

Orpiano v. Johnson, 687

F.2d 44, 47–48 (4th Cir. 1982); see also United States v.
Midgette, 478 F.3d 616, 622 (4th Cir. 2007) (“[T]o preserve for
appeal an issue in a magistrate judge's report, a party must
object to the finding or recommendation on that issue with
sufficient specificity so as reasonably to alert the district
court of the true ground for the objection.”); McPherson v.
Astrue, 605 F. Supp. 2d 744, 749 (S.D.W. Va. 2009) (“[F]ailure
to file a specific objection constitutes a waiver of the right
to de novo review.”).
“A document filed pro se is ‘to be liberally construed.’ ”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
4

Gamble, 429 U.S. 97, 106 (1976)).

Specifically as to objections

to a PF&R, courts are “under an obligation to read a pro se
litigant's objections broadly rather than narrowly.”

Beck v.

Comm'r of Internal Revenue Serv., 1997 WL 625499, at *1-2
(W.D.N.C. June 20, 1997) (citing Orpiano, 687 F.2d at 48).
However, courts “need not . . . address any arguments that fail
to point the Court to alleged specific errors the Magistrate
Judge made in the [PF&R].”

Dippel v. S.C. Farm Bureau Mut. Ins.

Co., 2019 WL 4010420, at *2 (D.S.C. Aug. 26, 2019) (citing
Orpiano, 687 F.2d at 47).
Liberally construing plaintiff’s objections, the court
reads plaintiff’s statement as setting forth five primary
objections: 1) plaintiff “object[s] to the findings” and asks
the court to “reconsider the findings;” 2) claimant’s narcotics
addiction meant that claimant was mentally ill and was therefore
disabled; 3) claimant suffered from bipolar disorder and was
therefore disabled; 4) claimant never drove herself to her
daughter’s school functions; and 5) claimant was not capable of
working.

(ECF No. 22).

It is not the province of a federal court to make
administrative disability decisions.

Rather, de novo review of

the PF&R in disability cases is limited to determining whether
substantial evidence supports the Commissioner's conclusions.
See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990); see
5

also Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966).
Evidence is substantial when, considering the record as a whole,
it might be deemed adequate to support a conclusion by a
reasonable mind, Richardson v. Perales, 402 U.S. 389, 401
(1971), or when it would be sufficient to refuse a directed
verdict in a jury trial.
Cir. 1996).

Smith v. Chater, 99 F.3d 635, 638 (4th

Substantial evidence is not a “large or

considerable amount of evidence,” Pierce v. Underwood, 487 U.S.
552, 565 (1988), but is more than a mere scintilla and somewhat
less than a preponderance.
F.2d at 642.

Perales, 402 U.S. at 401; Laws, 368

If the Commissioner's decision is supported by

substantial evidence, it must be affirmed.

42 U.S.C. § 405(g);

Perales, 402 U.S. at 401.
IV.

Analysis of Objections 1 and 2
Plaintiff’s objections 1 and 2 are general and conclusory

objections.

Neither objection 1 nor 2 direct the court to any

specific error in the PF&R.
required.

As such, de novo review is not

See Orpiano, 687 F.2d at 47.

Furthermore, as to

objection 2, plaintiff has never raised this argument before.
In fact, claimant frequently claimed she had not abused drugs in
the past eight years.

(ECF No. 21, at 30) (“The record

demonstrated that Claimant denied using IV drugs.”).

Because

plaintiff never raised this objection previously, this issue is
deemed waived and de novo review is not required.
6

See Harris v.

Astrue, 2012 WL 4478413, at *5 (D.S.C. Sept. 27, 2012), aff'd,
Harris v. Comm’r of Soc. Sec. Admin., 538 Fed. Appx. 293 (4th
Cir. 2013) (“Issues raised for the first time in objections to
the magistrate judge's recommendation are deemed waived.”).
With respect to objections 1 and 2, this Court need only
conduct a careful review to satisfy itself that there is no
clear error on the face of the record in order to accept the
Magistrate Judge's Recommendations.

See generally Fed. R. Civ.

P. 72(b) Advisory Committee's note (1983).

The court has

conducted this review and is satisfied no clear error exists.
Therefore objections 1 and 2 are OVERRULED.
V.

Analysis of Objections 3, 4, and 5
Plaintiff’s objections 3, 4, and 5, read broadly, do state

objections that warrant de novo review.

Plaintiff’s objection 3

alleges that claimant’s severe bipolar disorder should have led
to a conclusion that claimant was disabled pursuant to the third
step of the Administrative Law Judge’s (ALJ) disability
determination.

See 20 C.F.R. § 404.1520(a)(4)(iii) (2012).

Objection 4 is a specific factual objection alleging that
claimant never drove herself alone to her daughter’s school
functions.

Objection 4 is relevant to the severity of

claimant’s restrictions of daily living, which is also a
component of step iii of the ALJ’s disability determination.
See id.

Plaintiff’s objection 5 alleges that claimant was not
7

capable of performing any job.

This is an objection to the

ALJ’s finding that there were other jobs that plaintiff could
perform, which is a part of the fifth step of the ALJ’s
disability determination.

See id. § 404.1520(a)(4)(v).

All

three objections challenge the conclusions of the five-step
disability evaluation that the ALJ used and PF&R approved.
The ALJ uses a five-step sequential process in evaluating
disability claims.

See id. §§ 404.1520(a)-(g).

If at any point

of this process the ALJ determines conclusively that a claimant
is or is not disabled, review does not proceed to the next step.
Id. § 404.1520(a)(4).

The five steps include evaluations of

whether a claimant i) is working; ii) has a severe impairment;
iii) has an impairment that meets or equals the impairments in
Appendix 1 to Subpart P of the Administrative Regulations No. 4;
iv) can return to her past relevant work; and v) if not, whether
she can perform other work.

See id. §§ 404.1520(a)-(g).

If the

process reaches the fifth inquiry, in order to show that
claimant can perform other work, the ALJ must show both A) that
claimant, considering claimant’s age, education, work
experience, skills, and physical shortcomings, has the capacity
to perform an alternative job, and B) that this alternative job
exists in significant numbers in the national economy.

McLamore

v. Weinberger, 538 F.2d 572, 574 (4th Cir. 1976).
Here, inquiries i, ii, and iv were all met in favor of
8

finding that claimant did have a disability, while steps iii and
v found against claimant being disabled.

Claimant satisfied the

first inquiry because she had not worked since the alleged onset
date of December 30, 2013.

(Tr. at 2736, Finding No. 2).

She

also met the second inquiry, as the ALJ found that claimant
suffered from severe impairments, notably including bipolar
disorder.

(Id., Finding No. 3).

At the third inquiry, the ALJ

concluded claimant’s impairments did not meet or equal the level
of severity of any listing in Appendix 1, (id. at 2737, Finding
No. 4), and then found that claimant had the ability to perform
light work.

Notably, in conducting the third inquiry, the ALJ

found that claimant’s mental impairments did not meet sufficient
severity levels because claimant did not display greater than
moderate restriction in at least two of the following:
activities of daily living; social functioning; maintaining
concentration, persistence, or pace; repeated episodes of
decompensation.

(Id.)

Claimant then satisfied step iv because

she was unable to perform any past relevant work.
Finding No. 6).

(Id. at 2744,

However, at step v, claimant - considering her

age, education, work experience, skills, and physical
shortcomings - was found to be able to perform alternative work
that existed in significant numbers in the national economy.
(Id. at 2745, Finding Nos. 7-10).

This conclusion in step v led

the ALJ to conclude that claimant was not disabled as defined in
9

the Social Security Act.

(Id. at 2746, Finding No. 11) (citing

20 C.F.R. § 404.1520(g) (“If you can make an adjustment to other
work, we will find you not disabled.”)).

The court reviews the

determination of steps iii and v de novo, with particular
attention paid to claimant’s bipolar disorder and plaintiff’s
claims that claimant never drove herself to school functions and
that claimant was not capable of working.
A. Objections 3 and 4 – Review of Claimant’s Impairments
Step iii considers the medical severity of a claimant’s
impairments.

20 C.F.R. § 404.1520(a)(4)(iii) (2012).

If the

impairment is severe enough to meet the requirements in Appendix
1 to Subpart P of section 404.1520(a)(4)(iii), then there is an
immediate finding of disability.

Id. § 404.1520(a)(4).

12.04 in Appendix 1 corresponds to bipolar disorder.
§ Pt. 404, Subpt. P, App. 1 (12.00)(B)(3) (2018).

Listing

20 C.F.R.

To meet the

severity requirements of listing 12.04, claimant’s bipolar
disorder must satisfy the requirements of both Paragraphs A and
B, or the requirements of both Paragraphs A and C.
404, Subpt. P, App. 1 (12.00)(A)(2).

Id. § Pt.

Listing 12.04’s Paragraph

A includes the medical criteria that must be present in a
claimant’s medical evidence.
(12.00)(A)(2)(a).

Id. § Pt. 404, Subpt. P, App. 1

Paragraph B evaluates how a claimant’s mental

disorder limits his or her functioning, and to satisfy the
Paragraph B criteria, a claimant’s mental disorder must result
10

in an “extreme” limitation of one of the four areas of mental
functioning, or a “marked” limitation of two of the four areas.
Id. § Pt. 404, Subpt. P, App. 1 (12.00)(A)(2)(b).

The four

areas of mental functioning under Paragraph B are restriction of
activities of daily living; difficulties in social functioning;
difficulties in maintaining concentration, persistence, or pace;
and repeated episodes of decompensation.
No. 4).

(Tr. at 2737, Finding

To satisfy Paragraph C, a claimant’s mental disorder

must be “serious and persistent,” such that there is a medically
documented history of the existence of the disorder over a
period of at least two years, and evidence that satisfies the
criteria in both C1 and C2.

20 C.F.R. § Pt. 404, Subpt. P, App.

1 (12.00)(A)(2)(c).
Based upon claimant’s medical records, the ALJ concluded
that claimant’s bipolar disorder did not satisfy either the
requirements of both Paragraphs A and B, or the requirements of
both Paragraphs A and C.

Claimant underwent two disability

determination evaluations 1 which assessed her mental health and
assessed whether claimant’s bipolar disorder satisfied
Paragraphs A, B, or C.

(Tr. at 2888-2901, 2904-18).

The first

examination, by Dr. Harlow, evaluated claimant’s bipolar
These two evaluations were conducted on August 12, 2014 by Dr.
Jeff Harlow, (Tr. at 2888-2901), and on March 11, 2015 by Dr.
Paula J. Bickham. (Tr. at 2904-18).
1

11

disorder using the appropriate psychiatric review technique
(“PRT”), and found that claimant had “moderate” restriction of
activities of daily living, “mild” difficulties in social
functioning, “moderate” difficulties in maintaining
concentration, persistence, or pace, and “one or two” episodes
of decompensation.

(Id. at 2894).

Based on his evaluation of

these factors pertaining to claimant’s bipolar disorder, Dr.
Harlow concluded that “the requirements in paragraph ‘B’ [were]
not satisfied.”

(Id. at 2895).

Dr. Harlow additionally

concluded that Paragraph C criteria were also not met.

(Id.)

The second examination, by Dr. Bickham, also evaluated
claimant’s bipolar disorder using the PRT, and found that there
was “insufficient evidence” to establish that either the
Paragraph B or Paragraph C criteria were met.

(Id. at 2911). 2

As a result, substantial evidence supports the ALJ’s
determination that claimant does not meet step iii, and
plaintiff’s objection 3 is OVERRULED.
There are two possible sources of error in the ALJ’s
findings in the step iii inquiry that plaintiff’s objection 4
addresses.

First, the ALJ found that claimant had no

restriction in her activities of daily living.
Finding No. 4).

(Id. at 2738,

However, this error in the ALJ’s determination

Notably, claimant was determined to be “not disabled” upon each
evaluation. (Id. at 2901, 2018).
2

12

is harmless. Dr. Harlow found that claimant had “moderate”
restriction in her daily living due to her bipolar disorder.
(Id. at 2894).

But this one “moderate” restriction is

insufficient to meet Paragraph B’s requirements; Paragraph B
requires two restrictions of at least “marked” limitation, and
“marked” limitation is a restriction greater than “moderate”
limitation.
(2018).

20 C.F.R. § Pt. 404, Subpt. P, App. 1 (12.00)(F)(2)

Therefore, even if the ALJ should have found that

claimant had “moderate” restrictions in her daily living,
claimant did not have two or more “marked” limitations, and thus
Paragraph B criteria were not met.
Second, the ALJ at least in part based his determination of
no restriction in daily living upon his finding that claimant
attends school functions with her daughter.

This error – if it

is even error 3 - is also harmless for the same reasons discussed

First, the ALJ’s wording – that claimant “attends school
functions with her daughter” – does not clearly indicate that he
believed claimant drove herself, or drove herself alone, to
these events. (Tr. at 2738, Finding No. 4). Second, the record
is inconsistent regarding whether claimant did in fact drive
herself to things around town or whether her mother drove her.
For example, in claimant’s oral hearing before the ALJ, claimant
stated once that she doesn’t drive unless someone is with her,
(id. at 2867), while later stating that she continued driving in
spite of her seizures, (id. at 2879-80), and that she has driven
to the convenience store several times. (Id. at 2876) (these
trips to the convenience store are presumably by herself, since
she has to return home to ask what she was supposed to purchase
because she forgot). Therefore, the factual basis of
plaintiff’s objection is unclear, as is whether or not the ALJ’s
3

13

above.

If true, the fact that claimant only attended her

daughter’s school functions when her mother drove her to them
would not elevate claimant’s restriction in daily living to
above the “moderate” level.

In the ALJ’s listed reasons for

finding that claimant’s mental impairments did not restrict her
daily living, the ALJ noted many factors in addition to
claimant’s ability to attend her daughter’s school functions.
The ALJ also noted that claimant woke and readied her child for
school, cares for and practices with her daughter, cooks
primarily using the microwave, watches television, cleans her
house, and shops for groceries.

(Tr. at 2738, Finding No. 4).

As such, there are many grounds to find that claimant had, at
most, “moderate” limitations in her daily living.
Therefore, both possible sources of error in the ALJ’s
findings raised by objection 4 are harmless, as there is
substantial evidence that supports the ALJ’s determination that
step iii was not met.

As such, after de novo review considering

objections 3 and 4, claimant does not meet step iii’s
requirements, and there can be no immediate finding of
disability.

Plaintiff’s objections 3 and 4 are OVERRULED.

The

court now directs its attention to plaintiff’s objection 5.

determination actually relied upon a finding that claimant drove
herself places, including to her daughter’s school functions.
14

B. Objection 5 – Review of Step v
Step v requires the ALJ, in order to deny claimant
benefits, to show that claimant’s impairments do not preclude
her from making an adjustment to being able to perform any other
work.

20 C.F.R. § 404.1520(g) (2012).

The ALJ must meet a two-

part test by demonstrating both A) that claimant, considering
claimant’s age, education, work experience, skills, and physical
shortcomings, has the capacity to perform an alternative job,
and B) that this alternative job exists in significant numbers
in the national economy.
574 (4th Cir. 1976).

McLamore v. Weinberger, 538 F.2d 572,

Plaintiff’s objection 5 challenges the

first part of the test.
The ALJ’s determination that claimant’s impairments did not
preclude her from performing other work is supported by
substantial evidence.

Claimant is a younger individual, as she

was 34 years old at the time of the alleged disability onset
date.

(Tr. at 2745, Finding No. 7).

Claimant has a high school

education, (id.), where she had a GPA of 3.9, (id. at 2738), she
completed one year of college, and she has an LPN degree.
at 3051).

(Id.

Claimant worked as a nurse for thirteen years prior

to the alleged disability onset.

Claimant’s job skills are not

relevant, as it had been decided in her favor that she was
unable to return to her previous work. (Id. at 2744).

While

claimant has mental and physical shortcomings, the ALJ expressly
15

and correctly accounted for those shortcomings by obtaining a
Vocational Expert’s opinion as to whether jobs existed that a
hypothetical person with claimant’s impairments and limitations
could perform.

(Id. at 2882-85).

The Vocational Expert stated

that there were sedentary and unskilled jobs that claimant could
perform, such as a marker, mail clerk, garment sorter, document
preparer, charge account clerk, or call-out operator.

(Id. at

2883-84).
Considering plaintiff’s objection 5, this court finds that
the ALJ’s determination that claimant was able to work and meets
step v of the disability analysis is supported by substantial
evidence.
VI.

As such, plaintiff’s objection 5 is OVERRULED.

Conclusion
The court has reviewed Magistrate Judge Aboulhosn’s

Proposed Findings and Recommendation, plaintiff’s objections to
the PF&R, defendant’s brief in support of defendant’s decision,
and the pertinent portions of the administrative record.

In so

doing, the court has made a de novo determination of those
issues within the PF&R to which plaintiff properly objected.
The court finds that Magistrate Judge Aboulhosn was correct in
concluding that there is substantial evidence in the record to
support the ALJ's and the Commissioner’s decision.

16

Based upon the foregoing, the court adopts the Findings and
Recommendations of Magistrate Judge Aboulhosn as follows:
1.

Plaintiff’s request for reversal of the final decision
is DENIED;

2.

Defendant’s request to affirm the final decision of
the Commissioner is GRANTED;

3.

The final decision of the Commissioner is AFFIRMED;

4.

The case is DISMISSED; and

5.

The Clerk is directed to remove the case from the
court’s docket.

The Clerk is directed to forward a copy of this Memorandum
Opinion and Order to counsel of record and all unrepresented
parties.
IT IS SO ORDERED this 25th of September, 2019.
ENTER:
David A. Faber
Senior United States District Judge

17