Roberts v. Colvin

Filing 19

MEMORANDUM OPINION AND ORDER adopting and incorporating the 16 Proposed Findings and Recommendations by Magistrate Judge, affirming the Commissioner's final decision, granting judgment in favor of the Commissioner, and dismissing and striking this civil action from the docket. Signed by Judge John T. Copenhaver, Jr. on 3/25/2016. (cc: counsel of record; United States Magistrate Judge) (tmh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
EDWIN ALLEN ROBERTS,
Plaintiff,
v.

Civil Action 14-26507

CAROLYN V. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
On October 3, 2014, plaintiff Edwin Allen Roberts
(“plaintiff”) instituted this action seeking judicial review of
the Commissioner's final decision pursuant to 42 U.S.C. §
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.

See 45 U.S.C. § 405(g).
I. Background

By standing order this action was referred to the
Honorable Omar J. Aboulhosn, United States Magistrate Judge.
February 12, 2016, the magistrate judge filed his Proposed
Findings and Recommendation ("PF&R").

In the PF&R, the

On

magistrate judge recommends that the Commissioner's final
decision be affirmed and this matter dismissed from the docket.
On February 24, 2016, plaintiff filed his objections
to the PF&R.

According to plaintiff, the magistrate judge erred

in concluding that the decision of the Administrative Law Judge
(“ALJ”) was supported by substantial evidence.

Specifically,

plaintiff contends that the ALJ erred in finding that
plaintiff’s right hand deformity was not a “severe” impairment.
Plaintiff also contends that the magistrate erred in finding
that new evidence, not presented to the ALJ though provided to
the Appeals Council, which came from John R. Atkinson, M.A., a
licensed clinical psychologist, was not “material” and did not
warrant remand.

These arguments were presented, in virtually

identical form, to the magistrate, who rejected them.
II. Plaintiff’s first objection
As noted, plaintiff asserts that the ALJ erred in
determining that plaintiff’s alleged impairment was not
“severe.”

In particular, plaintiff points to a December 2012 x-

ray of his right hand, along with his complaints to his
physicians that he suffered from swelling, cramping, and

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difficulty grasping objects, as substantial evidence that his
impairment was “severe.”
A.
To be deemed “disabled,” a social security claimant
must have an impairment or combination of impairments which is
“severe,” meaning that it “significantly limits [his or her]
physical or mental ability to do basic work activities.”
C.F.R. §§ 404.1520(c), 416.920(c).

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Basic work activities are

those necessary to do most jobs -- for instance, sitting and
standing, seeing, hearing and speaking, and coping appropriately
with a work environment.
416.921(b)(1)-(6).

See 20 C.F.R. §§ 404.1521(b)(1)-(6),

On the other hand, an impairment is

considered “‘not severe’ only if it is a slight abnormality
which has such a minimal effect on the individual that it would
not be expected to interfere with the individual’s ability to
work, irrespective of age, education, or work experience.”
Evans v. Heckler, 7234 F.2d 1012, 1014 (4th Cir. 1984) (emphases
omitted).
B.
Here, the ALJ acknowledged plaintiff’s subjective
complaints of chronic joint pain.
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See Transcript 15.

The ALJ

also acknowledged plaintiff’s testimony that he had difficulty
lifting various common objects, such as milk jugs or soda
bottles, and had to eat with his left, non-dominant hand.

Id.

On the other hand, so to speak, the ALJ considered the evidence
in the record indicating that examinations of plaintiff’s hand
revealed only mild edema (fluid buildup) and tenderness.
Transcript 15-16.

See

Relatedly, the ALJ observed that evidence in

the record indicated that plaintiff’s pain was stable with
medication.

See Transcript 16.

Consequently, the ALJ

determined that there existed in the record “no objective
evidence to support the alleged severity of [plaintiff’s] joint
pain . . . or hand complaints.”

Id.

The ALJ’s conclusion is borne out by the record.
Plaintiff’s treating physician, Dr. Roger Anderson, M.D., noted
mild edema in plaintiff’s right hand, accompanied by some
tenderness and pain.

See Transcript 461-62, 474.

X-rays of

plaintiff’s right hand demonstrated several deformities in the
bones of the hand, but only mild degenerative changes in the
affected joints and no definite evidence of past or present
acute fracture or dislocation.

See Transcript 455, 476.

After

plaintiff complained of hand and joint pain on two further
occasions in early 2013, Dr. Anderson prescribed plaintiff pain
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medication.

See Transcript 460-61.

Plaintiff reported to Dr.

Anderson that the medication had provided him relief from pain.
See Transcript 459.

Plaintiff sought no further treatment.

Upon de novo examination of the record as it pertains
to this objection, the court concludes that the ALJ’s decision
was supported by substantial evidence.

Although plaintiff

himself testified that he experienced pain in his hand, the
record itself is otherwise devoid of any objective evidence of a
severe impairment.

Instead, the medical evidence indicated that

plaintiff suffered from relatively mild degeneration, and that
his pain subsided with the use of medication.

Perhaps more

significantly, the record is quite clear that plaintiff did not
seek any treatment other than pain medication, and only sought
treatment in 2012, nearly six years after the injury occurred.
Under the circumstances, the court concludes that the ALJ’s
decision -- that plaintiff’s right hand injury was not of
sufficient severity to render him disabled, as that term is used
in the relevant regulations -- was supported by substantial
evidence.

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III. Plaintiff’s second objection
Plaintiff further contends that remand is required for
consideration of a psychological evaluation performed by John R.
Atkinson, M.A., a clinical psychologist.

The magistrate judge

concluded that Mr. Atkinson’s report, though it existed for some
time before the ALJ reached a decision, and which was eventually
presented to the Appeals Council, was insufficient to work any
change in the analysis of the result reached by the ALJ, as the
report is consistent with the evidence upon which the ALJ based
his decision.

Hence, the magistrate judge concluded that remand

was not warranted on this issue.
To begin, 28 U.S.C. § 405(g) provides, in pertinent
part, that remand is warranted “upon a showing that there is new
evidence which is material and that there is good cause for the
failure to incorporate such evidence into the record in a prior
proceeding.”

Evidence is considered “material” if “there is a

reasonable possibility that the new evidence would have changed
the outcome” during the administrative review process.

Wilkins

v. Secretary, Dep’t of Health and Human Svcs., 953 F.2d 93, 96
(4th Cir. 1991) (en banc); Borders v. Heckler, 777 F.2d 954, 955
(4th Cir. 1985) (same).
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The record indicates that on April 11, 2012, Letisha
McClure, M.A., a therapist at Westbrook Health Services in
Parkersburg, West Virginia, observed that plaintiff “present[ed]
with appropriate affect” but had an “anxious and depressed range
of mood.”

See Transcript 446-47.

Ms. McClure recommended an

additional psychological evaluation, and characterized
plaintiff’s mental health problems as “considerable.”

Id.

Dr.

Anderson, plaintiff’s primary care physician, observed symptoms
of anxiety during a March 5, 2013, examination, see Transcript
460-61, and formally diagnosed plaintiff with anxiety on May 2,
2013, see Transcript 473.

The record also contains evidence

that plaintiff struggled in the past with alcohol and cannabis
dependence, see Transcript 444-46, although plaintiff testified
at his hearing before the ALJ that he had ceased consuming
alcohol and illegal drugs, see Transcript 48-49.
Summarizing the evidence in the record, the ALJ
concluded that plaintiff’s mental health problems and limited
past substance abuse were not “severe” impairments because there
was a lack of evidence that they resulted in a significant
limitation to plaintiff’s ability to work.
17.

See Transcript 16-

Further, the plaintiff’s testimony indicated that plaintiff

had begun taking the anti-anxiety medication Xanax, by
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prescription, and had ceased consuming alcohol.
17.

See Transcript

The ALJ concluded that plaintiff had only mild limitations

in daily activities, social functioning, and other relevant
metrics.

Id.
Mr. Atkinson’s one-time evaluation of February 16,

2012, which, as noted, was not exhibited to the ALJ prior to
plaintiff’s May 13, 2013, hearing is consistent with the
evidence relied upon by the ALJ.

See Transcript 513-521

(detailing Mr. Atkinson’s evaluation and findings regarding
plaintiff’s psychological state).

On February 8, 2012, Mr.

Atkinson conducted the psychological evaluation to determine
plaintiff’s eligibility for disability benefits.
513.

See Transcript

According to Mr. Atkinson’s report, he observed that

plaintiff’s attitude was generally pleasant, but that he was
somewhat preoccupied and had difficulties with focus, attention,
and concentration akin to symptoms of ADHD.
14.

See Transcript 513-

For instance, plaintiff listened marginally during the

examination, talked on his cell phone, and exhibited other signs
of easy distractibility.

See Transcript 513, 517.

At the

conclusion of Mr. Atkinson’s examination, he diagnosed plaintiff
with borderline intellectual functioning, and borderline
personality disorder of the antisocial type.
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See Transcript

520.

Mr. Atkinson, however, felt that plaintiff’s prognosis was

fair.

See Transcript 520-21.
Having reviewed both the evidence submitted to the ALJ

as well as the report by Mr. Atkinson, which plaintiff would now
have considered by the ALJ on remand, the court concludes that
Mr. Atkinson’s report is consistent with the evidence upon which
the ALJ was able to rely.

Because Mr. Atkinson’s evaluation is

consistent with the evidence the ALJ considered, the court
cannot conclude that “there is a reasonable possibility that the
new evidence would have changed the outcome” before the ALJ.
Wilkins, 953 F.2d at 96.
IV. Conclusion
For the reasons stated above, 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.

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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: March 25, 2016

John T. Copenhaver, Jr.
United States District Judge

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