Putillion v. Astrue
Filing
16
MEMORANDUM OPINION AND ORDER adopting and incorporating herein the 14 Proposed Findings and Recommendation by Magistrate Judge; accordingly directing as follows: that judgment on the pleadings are granted to defendant; and that the final decision of the Commissioner is affirmed. Signed by Judge John T. Copenhaver, Jr. on 6/5/2012. (cc: attys; U.S. Magistrate Judge) (cbo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
MARSHA JEAN PUTILLION
Plaintiff,
v.
Civil Action No. 2:11-0476
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
MEMORANDUM OPINON AND ORDER
This matter is before the court pursuant to Rule 72(b)
of the Federal Rules of Civil Procedure on plaintiff’s objection
to the proposed Findings and Recommendation (“PF & R”) of United
States Magistrate Judge Mary E. Stanley, entered April 23, 2012.
I.
Plaintiff Marsha Jean Putillion filed applications for
disability insurance benefits and supplemental security income
on February 10, 2009, alleging disability as of March 1, 2007,
due to ankle problems, asthma, back problems, and carpel tunnel
syndrome.
Her claims were denied initially, as well as upon
their reconsideration.
Upon plaintiff’s request, a hearing was
held before an administrative law judge (“ALJ”) on September 23,
2010.
By decision dated October 20, 2010, the ALJ determined
that Putillion was not entitled to benefits.
The ALJ’s decision
became the final decision of the Commissioner of the Social
Security Administration on May 13, 2011, when the Appeals
Council denied plaintiff’s request for review.
On July 12, 2011, Putillion instituted this action
seeking judicial review of the administrative decision pursuant
to 42 U.S.C. § 405(g).
The sole issue before the court is
whether the final decision of the Commissioner denying
plaintiff’s claims for benefits is supported by substantial
evidence.
1996).
See id.; Craig v. Chater, 76 F.3d 585, 589 (4th Cir.
The magistrate judge, in her findings and
recommendation, concluded that the ALJ’s decision was supported
by substantial evidence and recommended that the Commissioner’s
decision denying plaintiff benefits be affirmed.
Plaintiff’s objection to the PF & R, filed May 10,
2012, reasserts an argument that was addressed in the PF & R by
the magistrate judge who concluded that substantial evidence
supports the ALJ’s decision and that the new evidence offered by
plaintiff to the Appeals Council does not provide a basis for
changing the ALJ’s decision.
2
II.
In reviewing the proposed findings and recommendation
of a magistrate judge de novo, the court considers whether the
magistrate judge effectively applied the substantial evidence
standard.
Our court of appeals has observed the deference
governing substantial evidence review, observing that such
evidence is that:
which a reasoning mind would accept as sufficient to
support a particular conclusion. It consists of more
than a mere scintilla of evidence but may be somewhat
less than a preponderance. If there is evidence to
justify a refusal to direct a verdict were the case
before a jury, then there is “substantial evidence.”
Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966) (emphasis
added).
Once the court finds substantial evidence to support
the decision, the inquiry ends.
Id.
“In reviewing for
substantial evidence, [the court should] not undertake to reweigh conflicting evidence, make credibility determinations, or
substitute [its] judgment for that of the Secretary.”
Chater, 76 F.3d 585, 589 (4th Cir. 1996).
Craig v.
“Where conflicting
evidence allows reasonable minds to differ as to whether a
claimant is disabled, the responsibility for that decision falls
on the Secretary (or the Secretary’s designate, the ALJ).”
Id.
(quoting Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987)).
3
III.
Having reviewed the record de novo, the court
concludes that the ALJ appropriately characterized and weighed
the evidence, and the magistrate judge accurately and fully
evaluated the ALJ’s decision.
Much of plaintiff’s argument is
mere factual recitation and reassertion of the same arguments
made before the magistrate judge.
Plaintiff chiefly relies on evidence from Dr. Joe
Jarrell, M.D., and Ms. Kathleen Lovin, a physicians’ assistant.
Dr. Jarrell saw plaintiff only once, on May 20, 2009.
The
record indicates that plaintiff was not taking her medications
at that time due to the loss of her medical card and needed her
thyroid replacement hormone, and that other than a tender
thyroid, the physical examination was unremarkable.
320-321).
(Tr. at
Jarrell encouraged plaintiff to stop smoking and
restart her medications.
(Id.).
Moreover, the additional
opinion of Ms. Lovin, a non-physician, that plaintiff was
disabled is not supported by the record as a whole –- or even in
some significant respects by Lovin’s own treatment notes,
wherein it is noted on July 13, 2010, that plaintiff had no back
or neck pain, muscle weakness or radicular pain -- as the
magistrate judge aptly explains.
(PF & R at 11-16).
4
Plaintiff also submitted a Medical Assessment of
Ability to do Work-Related Activities (Physical) from Ms. Lovin
and Dr. Jarrell that was completed and dated on September 16,
2010, to the Appeals Council after the hearing before the ALJ on
September 23, 2010, and shortly before the ALJ’s decision was
issued on October 20, 2010.1
In this evaluation, which is
treated as new evidence before the Appeals Council, Jarrell and
Lovin stated that plaintiff could frequently only lift five
pounds per day, and that most of her body movements were quite
limited.
(Tr. 454-57).
The magistrate judge correctly
determined that the court must review the record as a whole,
including the new evidence submitted to the Appeals Council, in
order to determine whether the ALJ’s decision is supported by
substantial evidence.
(4th Cir. 1991).
See Wilkins v. Secretary, 953 F.2d 93, 96
Although plaintiff points to a few disparate
facts that appear favorable to her, it is not the court’s
function to re-weigh the evidence.
Craig, 76 F.3d at 589.
Rather, the court must consider only whether there is “more than
1
See PF & R at 13-14. Plaintiff explains that “[a]lthough
the evidence was dated September 16, 2010, it was not received
by the ALJ prior to the hearing date of September 23, 2010 for
an unknown reason.” She further observes that the “evidence was
not mentioned in the ALJ’s decision, and it is therefore
reasonable to assume that it was not taken into consideration
when [the ALJ] made her decision.” (Pl.’s Brief in Support of
Judgment on the Pleadings at 3-4). The evidence was attached as
an exhibit to plaintiff’s Appeals Council brief. (See id. at 4;
Tr. 5).
5
a mere scintilla of evidence” to support the findings of the
ALJ.
Laws, 368 F.2d at 642.
As is thoroughly discussed by the
magistrate judge in her PF & R, including the reasons discussed
above, the ALJ’s decision is supported by substantial evidence.
IV.
For the foregoing reasons, and having reviewed the
record de novo, the court adopts and incorporates herein the
magistrate judge’s proposed findings and recommendation in their
entirety.
The court accordingly ORDERS as follows:
1. That judgment on the pleadings be, and it hereby is,
granted to defendant; and
2. That the final decision of the Commissioner be, and it
hereby is, affirmed.
The Clerk is directed to forward certified copies of
this written opinion and order to all counsel of record and the
United States Magistrate Judge.
ENTER: June 5, 2012
John T. Copenhaver, Jr.
United States District Judge
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?