Riffe v. Astrue
Filing
12
MEMORANDUM OPINION AND ORDER adopting and incorporating the 10 Proposed Findings and Recommendation herein; affirming the final decision of the Commissioner; granting judgment in favor of the Commissioner; and this civil action is dismissed and stricken from the docket. Signed by Judge John T. Copenhaver, Jr. on 9/23/2013. (cc: attys; United States Magistrate Judge) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
JOE FREDDY RIFFE,
Plaintiff,
v.
CIVIL ACTION NO: 2:12-4460
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
On August 17, 2012, plaintiff instituted this action
seeking judicial review of the Commissioner's final decision
pursuant to 42 U.S.C.A. § 405(g).
The sole issue before the
court is whether the decision denying plaintiff’s claim for
income and benefits is supported by substantial evidence.
45 U.S.C.A. § 405(g).
See
The parties have filed no briefs and
engaged in no motion practice.1
1
Local Rule of Civil Procedure 9.4(a) directs the
plaintiff to file a brief in support of the complaint no later
than 30 days following service of the administrative record.
That filing triggers the Commissioner’s response, which is due
no later than 30 days thereafter. Counsel’s compliance with
Local Rule 9.4(a) is essential for the proper prosecution of his
client’s appeal and the analysis to be performed by the
By standing order this action was referred to the
Honorable Dwane L. Tinsley, United States Magistrate Judge.
On
August 29, 2013, the magistrate judge filed his Proposed
Findings and Recommendation ("PF&R").
In the PF&R, the
magistrate recommends that the Commissioner's final decision be
affirmed and this matter dismissed from the docket.
On September 16, 2013, plaintiff filed his objections.
First, plaintiff asserts that the administrative law judge
(“ALJ”) improperly rejected the vocational expert’s testimony
that no work existed for a hypothetical individual with the
physical and mental impairments found in questions two and three
that were put to the expert by the ALJ.
Second, plaintiff
asserts that the ALJ improperly concluded that the plaintiff’s
testimony regarding his physical and psychological limitations
was not credible.
Third, plaintiff asserts that the ALJ
inadequately explained her reasons for failing to properly weigh
the opinions of treating physician James Stollings, D.O., and
evaluating psychologist Mary Walker.
magistrate judge inasmuch as it frames the issues on review.
That framing comes too late when it occurs for the first time
upon the filing of objections under Federal Rule of Civil
Procedure 72. Counsel is directed in future cases to comply
with the requirements of the Local Rules of Civil Procedure.
2
Respecting the first challenge, the ALJ engaged in
three relevant colloquies with the vocational expert.2
Each one
appears below:
QUESTION ONE COLLOQUY (Admin. Rec. at 47):
Q Let’s assume the claimant has a residual functional
capacity for light work. Should never climb ladders,
ropes, or scaffolds. Can occasional[ly] perform other
postural activities. Should avoid concentrated
exposure to extreme cold, extreme heat. Should avoid
even moderate exposure to excessive vibration and
hazards of moving machinery and unprotected heights.
Q With those limitations, would he be able to perform
any of his past work?
A I don't believe he could because of the exertional
level, Your Honor.
Q And, assuming a hypothetical individual the same
age, education, and work background as the claimant's,
with that residual functional capacity, are there
other jobs that he could perform?
A Yes, Your Honor. I think certainly we could consider
any of a variety of semiskilled, sales clerk type
positions from sales of hardware and general
merchandise. . . .
2
Plaintiff’s counsel refers to only two hypothetical
questions but provides the same pinpoint citation information
for both, namely, “Hrg. Transcript, Pg. 25, Listed as Exhibit
Page 49 at the bottom of the page and Page 50 at the top of the
Page, Lines 6-25.” (Pl.’s Objecs. at 4). The question and
answer found at the pinpoint citation appears to reference the
third hypothetical question identified by plaintiff. The second
question he identifies appears at pages 48-49 of the
administrative record. In order to capture the entirety of the
relevant questions and answers posed to the vocational expert,
the court will instead refer to the interchanges as colloquies.
3
QUESTION TWO COLLOQUY (Admin. Rec. at 48-49):
Q Let's assume a hypothetical individual is reduced
two or more days off, requires the use of a cane to
walk. Really should never push or pull with the left
upper extremity. Should never use the foot control
operations on the right lower extremity. Never climb
ladders, ropes, or scaffolds and never crawl. Can
occasionally perform the other classified activities.
The individual is right-hand dominant. Could never use
the left non-dominant arm for gross manipulation or
handling objects or fine manipulation for fingering.
Like one individual has no feeling in that left hand,
so they were [INAUDIBLE). Should avoid concentrated
exposure to extreme cold, extreme heat, and avoid even
moderate exposure to sense of vibration and should
avoid even moderate exposure to the hazards of moving
machinery and unprotected heights. With those
limitations, are there jobs such an individual could
perform?
A There might be on a limited basis. I think on or
over a sustained period of time [INAUDIBLE]. Those
[INAUDIBLE] and referring the use of the cane and the
other limitations I think it would be good on [a] . .
. sustained basis to do work in the context of the
claimant.
Q Okay. So, you would not be able to identify jobs?
A Not, as long as the limitations we have are in.
QUESTION THREE COLLOQUY (Admin. Rec. at 49):
Q Now, consider with respect to the first hypothetical
that I gave you. Add limitations of [INAUDIBLE]
generic limitation on the Exhibit that was submitted,
but you probably won’t have a copy of 13F. Basically,
the MRSC examiner opines that the individual has no
useful underlying function in any areas with respect
to occupational investments. Performance adjustments
including understanding, remembering, and carrying out
complex, detailed, or simple job instructions.
Likewise, the individual could have the useful ability
to make first social adjustments and in some places
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being able to adjust in an emotionally stable manner.
Relating predictability to social situations or
demonstrating reliability. Those just touch on the
limitations. With those limitations, would that
individual be able to perform the jobs that you
identified in the first hypothetical or any other
jobs?
A No, Your Honor.
It appears that the first colloquy put to the
vocational expert included the limitations ultimately found to
exist by the ALJ in that portion of her decision addressing the
plaintiff’s residual functional capacity.
13).3
(See Admin. Rec. at
The remaining two colloquies included the more profound
limitations urged by the plaintiff.
Those additional
limitations were necessarily rejected by the ALJ.
The analysis
of the plaintiff’s three objections thus collapses into
consideration of the second and third challenges.
This is so
3 The relevant portion of the ALJ’s decision provides as
follows:
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform light work as defined
in 20 CFR 404.1567(b) and 416.967(b) except he may
never climb ladders, ropes, or scaffolds; but may
occasionally climb ramps and stairs, balance, stoop,
kneel, crouch, and crawl. He should avoid concentrated
exposure to extreme cold and extreme heat, and even
moderate exposure to excessive vibrations and hazards
such as heights and machinery.
(Admin. Rec. at 13)
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inasmuch as the additional limitations urged by the plaintiff,
and found in the second and third colloquies, would only be
relevant if the ALJ lacked substantial evidence for rejecting
some of the opinions found therein of treating physician Dr.
Stollings and evaluating psychologist Ms. Walker.
Respecting the second challenge relating to the
plaintiff’s credibility, there is substantial evidence to
support the ALJ’s conclusion as follows: “[T]he claimant's
statements concerning the intensity, persistence and limiting
effects of these symptoms are not credible . . . .”
14).
(Tr. at
In support of this conclusion, it is noted that the
plaintiff testified that his left arm was useless.
(Tr. at 35
(“It's really useless. . . . I don't have any strength in it. .
. . And, I have no feeling in it, except for the very bottom
part of my hand.”)).
An April 16, 2010, evaluation from Charleston Area
Medical Center, however, reflects the plaintiff’s report that he
“[p]assed out while golfing today.” (Admin. Rec. at 460).
temperature at the time was in the upper 80s.
The
The ALJ also
noted that while plaintiff had surgery following his motor
vehicle accident that might be expected to cause some of his
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symptoms, the surgery was generally successful and the surgeon
who performed the procedure stated that the prognosis was good.
Further, following the April 9, 2009, follow-up visit
with the surgeon Dr. Crompton, the ALJ noted no indication that
plaintiff visited him anew with complaints respecting the
surgical outcome.
Also noteworthy is a significant
overstatement uttered by the plaintiff during his testimony,
only a portion of which was analyzed by the ALJ.
The ALJ noted
that the plaintiff testified to dropping 50 or 60 pounds since
the December 2008 accident from loss of appetite.
She noted,
however, that he weighed 200 pounds according to an April 2010
admission summary.
A further examination of the record
discloses that the plaintiff weighed 195 pounds when he visited
the emergency room on December 6, 2008, immediately after his
motor vehicle accident.
The ALJ thus permissibly treated the plaintiff as
having diminished credibility.
The ALJ additionally concluded
that the plaintiff’s exaggerated appraisal of his alleged
physical ailments caused her to question the nature and extent
of his alleged mental impairments.
She further noted that (1)
he listed no mental impairments when his application for
benefits was filed, and (2) while he attempted to minimize his
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cognitive functioning and socialization with others, other
admissions he offered, such as attending church regularly,
earning average grades in school, and formerly holding a
supervisory employment position all led to opposing inferences.
It is also noted that plaintiff was with a friend during the
2010 golfing episode described above.
For all of the foregoing reasons, and others
identified by the ALJ, the plaintiff’s credibility was properly
deemed to have been minimal and his self-reported ailments
significantly overstated.
Respecting the ALJ’s assessment of the treating
physicians, the record first reflects her analysis of Dr.
Stollings’ views of the plaintiff in February 2009:
[S]tability, reflexes, sensation and muscle strength
and tone was normal. Furthermore, his mood and affect
were normal. He reported he was currently employed.
The undersigned gives great weight to this treating
physician's observations and opinions insofar as they
are consistent with the medical evidence of record.
(Admin. Rec. at 15 (citation omitted)).
This excerpt thus
indicates that the ALJ accepted the views of Dr. Stollings as
plaintiff’s treating physician in some respects.
It is the case that Dr. Stollings prescribed
psychotropic medications for plaintiff and that plaintiff
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contends that he suffered from a severe mental impairment.
The
plaintiff’s use of the substances, however, does not necessarily
mean that he is afflicted with a severe mental impairment, nor
does it mean that Dr. Stollings’ treating physician opinions as
to his mental or emotional conditions were disregarded.
As
noted, the ALJ permissibly concluded that plaintiff’s selfreported psychiatric problems, which likely resulted in him
being prescribed the substances, were exaggerated.
Plaintiff stresses the attention he received from Ms.
Walker and her views respecting his alleged mental impairments.
There are, however, a variety of reasons that Ms. Walker’s
opinions were not treated as controlling by the ALJ.
First, Ms.
Walker only saw the plaintiff on a single occasion, which the
ALJ noted as a “referral by his attorney.”
(Admin. Rec. at 11).
Additionally, Ms. Walker’s conclusions were partially driven by
the plaintiff’s self-reporting which has, again, been accorded
little credibility by the ALJ.
Further, the ALJ noted that
plaintiff has not received routine treatment from a mental
health facility.
Also, the state agency non-examining
psychologists unanimously concluded that the plaintiff’s mental
and emotional conditions did not rise to the level of a severe
impairment.
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For these reasons and the others expressed by the ALJ,
substantial evidence and a reasoned explanation supports the
ALJ’s decision to accord lesser weight to the opinions of
plaintiff’s treating physicians.
For the reasons stated, and having reviewed the record
de novo, the court ORDERS as follows:
1.
That the PF&R be, and it hereby is, adopted and
incorporated herein;
2.
That the Commissioner’s final decision be, and it
hereby is, affirmed;
3.
That judgment be, and it hereby is, granted in favor
of the Commissioner; and
4.
That this civil action be, and it hereby is, dismissed
and stricken from the docket.
The Clerk is directed to forward copies of this
written opinion and order to all counsel of record and the
United States Magistrate Judge.
DATED:
September 23, 2013
John T. Copenhaver, Jr.
United States District Judge
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