Maynard v. Berryhill

Filing 18

MEMORANDUM OPINION AND ORDER directing that the Claimant's 17 objections to the Proposed Findings and Recommendation are overruled in part and sustained in part as set forth herein; adopting the 16 Proposed Findings and Recommendation by Magistrate Judge in full except as noted otherwise in the text of the foregoing memorandum opinion and order; the Claimant's 10 request for judgment on the pleadings is denied; the Commissioner's 14 motion for judgment on the ple adings is granted; the decision of the Commissioner is affirmed; and Claimant's action is dismissed and removed from the docket of the court. Signed by Judge John T. Copenhaver, Jr. on 9/28/2018. (cc: counsel of record; United States Magistrate Judge) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
PATTY M. MAYNARD,
Plaintiff,
v.

Civil Action No. 2:17-cv-04131

NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending are the parties’ cross motions for judgment on
the pleadings, filed by plaintiff Patty M. Maynard (“Claimant”)
on December 28, 2017, and by defendant Nancy A. Berryhill
(“Commissioner”) on February 22, 2018.

I.

Procedural History

This action was referred to United States Magistrate
Judge Dwane L. Tinsley for consideration in accordance with 28
U.S.C. § 613(b)(1)(B) and the standing order for this district.
Claimant and the Commissioner have filed cross motions for
judgment on the pleadings.

The magistrate judge filed his Proposed Findings and
Recommendation (“PF&R”) on July 27, 2018.

In the PF&R, the

magistrate judge concluded that “substantial evidence supports
the ALJ’s assessment of Claimant’s [residual functional
capacity] and that Claimant’s mental impairments were nonsevere, therefore, Plaintiff’s Brief in Support of Motion for
Judgment on the Pleadings should be denied.”

PF&R 17-18.

The

magistrate judge recommends that the court affirm the final
decision of the Commissioner and dismiss this case.

Id. at 18.

On August 10, 2018, Claimant filed objections to the PF&R.

ECF

No. 17.
Claimant lodges two objections.
Claimant’s alleged mental impairments.

Both concern

First, the ALJ found

that Claimant’s mental limitations were non-severe.

Tr. 70.

The Claimant contends that the magistrate judge erred in
upholding the ALJ’s decision by relying upon medical evidence
that was not in the record before the ALJ nor was accepted into
the administrative record by the Appeals Council.

See id. at 2.

The court notes the anomaly that Claimant, in an effort to
overturn the ALJ’s decision, sought unsuccessfully to present
that same medical evidence to the Appeals Council.
Second, Claimant asserts that the magistrate judge
“erred by finding the ALJ’s step two finding was supported by
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substantial evidence without considering whether the ALJ applied
the proper legal standard in evaluating the medical opinions [of
two state medical examiners].”

Id. at 3.

Neither party has objected to the magistrate judge’s
recitation of the standards for (1) reviewing the Commissioner’s
final decision, or (2) the sequential evaluation process.

Those

same two components of the PF&R, see PF&R 2-5, thus apply on
review before the undersigned here.

II.

The Objections

The Claimant’s first objection correctly notes that
the magistrate judge cited evidence which did not appear in the
record before the ALJ to support his finding that the ALJ relied
on substantial evidence in his step two analysis.
at 2-3.

ECF No. 17,

In seeking review of the ALJ’s decision by the Appeals

Council, Claimant offered additional medical evidence which the
Appeals Council “did not consider or exhibit” because the
evidence “did not show a reasonable probability that it would
change the outcome of the decision.”

Tr. 2.

The evidence at

pages 6-60 of the transcript contains information that was not
presented to or considered by the ALJ.

Any reliance upon that

evidence in reviewing whether the ALJ’s decision was supported
by substantial evidence would have been improper.
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Regardless of the magistrate judge’s citation to facts
that were not presented to the ALJ, the ALJ’s decision based on
the record before him was supported by substantial evidence.
The ALJ properly conducted the step two analysis and provided
sufficient reasoning for rating the degrees of the four
functional areas.
416.920a(d)(1).

See 20 C.F.R. §§ 404.1520a(d)(1),

The court does not reweigh the evidence or

resolve the disparities between conflicting evidence. See
Johnson, 434 F.3d at 653.

“Where conflicting evidence allows

reasonable minds to differ as to whether a claimant is disabled,
the responsibility for that decision falls on the [ALJ].”

Id.

(alteration in original) (internal quotation marks omitted).
First, the ALJ rated the limitation of the functional
area having to do with understanding, remembering or applying
information, as mild.

Tr. 71.

The magistrate judge, in

reviewing this finding, referred to evidence that was not
brought before the ALJ in describing why the ALJ’s decision that
Claimant had only a mild limitation in this functional area was
supported by substantial evidence.

The magistrate judge cited

evaluations by Dr. Ryan Cook, evidence not available to the ALJ,
to support the assertion by the ALJ that Claimant’s memory was
“fairly good.”

PF&R 14 (citing Tr. 22, 25).

Further, the

magistrate judge cited to a July 14, 2016 examination by Dr.

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Thomas Dickey in stating that Claimant engaged in the leisure
activities of “using Facebook and playing Yahtzee.” PF&R 14
(citing Tr. 828).

But this citation was inaccurate.

Dr.

Dickey’s report from this examination did not mention Claimant’s
use of Facebook or playing Yahtzee, see Tr. 828, nor did any of
the evidence presented to the ALJ.
The magistrate judge also referred to evidence
actually used by the ALJ to find that Claimant only had a mild
limitation in this functional area.

PF&R 14.

Additional

evidence utilized in the ALJ’s decision--but omitted by the
magistrate judge in his PF&R--similarly demonstrates that the
ALJ’s finding was supported by substantial evidence.

For

example, Elizabeth Kent, Claimant’s counselor, noted that
Claimant provided useful insight into her own impairments.
586.

Tr.

And while the medical reports cited by the magistrate

judge to show Claimant had a good or “fairly good” memory, PF&R
14 (citing Tr. 22, 25), did not appear before the ALJ, the ALJ
referenced other medical reports that contained the same
observation.

Tr. 71 (quoting 829, 833).

The record relied upon

by the ALJ provided substantial evidence for her finding that
Claimant had no more than a mild limitation in the first
functional area.

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Second, the ALJ found that Claimant had no more than a
mild limitation in the second functional area, interacting with
others.

Tr. 71-72.

The magistrate judge made three references

to evidence not in the record before the ALJ in his analysis of
Claimant’s limitations in this functional area.

These were

references to the reports of Dr. Veena Bhanot, Dr. Cook, and Dr.
Dickey that included descriptions of Claimant as being pleasant,
talkative and engaging, as well as a person who uses Facebook.
See PF&R 15 (citing Tr. 21, 24, 25, 28).
Notwithstanding the magistrate judge’s inclusion of
that evidence in his analysis of the ALJ’s decision, he
adequately evaluated the evidence relied upon by the ALJ to
conclude that the ALJ’s decision was based on substantial
evidence.

The ALJ referred to other evidence in the record,

that the magistrate judge did not mention, to explain her
decision, e.g. Claimant, in her treatment appointments, was
“consistently cooperative and socially appropriate.”
(citing 576-608, 730-33, 820-23, 827-30, 832-34).

Tr. 72

The finding

that plaintiff had no more than a mild limitation in interacting
with others was supported by substantial evidence.
Third, regarding the functional area of concentration,
persistence or pace, the ALJ held that Claimant had a mild
limitation.

To establish that the ALJ’s decision was based upon
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substantial evidence, the magistrate judge again referenced
certain reports of Drs. Bhanot, Cook and Dickey that were not in
the record before the ALJ.

PF&R 15.

Dr. Cook’s report noted

that Claimant’s concentration was “intact,” Tr. 22, and the
reports of Dr. Bhanot and Dr. Dickey stated that her
concentration was “fairly good,” Tr. 25, 28.

The magistrate

judge also mentioned again that the Claimant could play Yahtzee
and added that she could “actively use Facebook to make social
connections”; however, that evidence was not in the record
before the ALJ.

Id. (citing Tr. 21, 24).

Without considering that evidence, the magistrate
judge’s finding that the ALJ’s decision was supported by
substantial evidence was nonetheless proper.

The magistrate

judge laid out the evidence that the ALJ actually considered,
and he reasonably concluded that the ALJ relied upon substantial
evidence to rate Claimant’s limitation in the third functional
area.

To further affirm the validity of the ALJ’s finding, the

court notes that the magistrate judge omitted from the PF&R an
observation cited by the ALJ, in which Dr. Bhanot, in an earlier
report before the ALJ, noted that Claimant’s concentration was
“fairly good.”

1

Tr. 72.

Dr. Bhanot had one treatment report in the record before the ALJ, see Tr.
832-34, but an additional report referenced by the magistrate judge was not
included in the evidence of record before the ALJ, see Tr. 26-29.
1

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Finally, in the last functional area, adapting or
managing oneself, the ALJ determined that Claimant had no
limitation.

Upon reviewing this decision in the PF&R, the

magistrate judge again referenced evidence that was not in the
record before the ALJ, namely, that she was able to adapt to
life after her father passed away, PF&R 16 (citing Tr. 24), and
that she was able to stay active, id. (citing Tr. 21).
There is copious evidence in the record, cited by the
ALJ, that supports the ALJ’s finding that Claimant had no
limitation in her ability to adapt or manage herself.

In

addition to the references to the record before the ALJ that the
magistrate judge made to support this finding, the ALJ mentioned
still other evidence that the magistrate judge did not.

That

other evidence was included in the ALJ’s finding that Claimant
was able to tend to her personal care, based on Claimant’s own
statements as well as the similar observations of the
professionals who treated her.
822, 829, 833).

Tr. 72 (citing Tr. 280, 730,

Disregarding the magistrate judge’s reference

to evidence not in the record, the ALJ’s finding regarding this
last functional area was supported by substantial evidence.

See

PF&R 16.
While the magistrate judge cited evidence, as
indicated, that never came before the ALJ, the reasoning for his
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determinations that the ALJ’s ruling was based on substantial
evidence remains sound, even when the late-filed evidence is
removed from consideration.

More significantly, the decision

the ALJ herself articulated is supported by substantial
evidence.

See Quintal v. Berryhill, No. 3:14-cv-15397, 2017

U.S. Dist. LEXIS 48692, at *14 (S.D.W. Va. Mar. 31, 2017).
Claimant’s second objection contends that the
magistrate judge erred in reviewing the ALJ’s evaluation of the
state agency medical consultants’ opinions which, Claimant
argues, the ALJ erroneously discounted.

ECF No. 17, at 3-4.

The state agency medical consultants, Dr. Jeff Harlow and Dr.
Holly Cloonan, both reviewed Claimant’s medical records as of
August 21, 2014 and January 7, 2015, respectively, and evaluated
her mental limitations by referring to the four criteria that
the court referred to in dealing with the first objection.

Dr.

Harlow and Dr. Cloonan concurred in their finding that Claimant
had moderate difficulties in maintaining concentration,
persistence, or pace, Tr. 113, 129, a condition which as earlier
noted the ALJ found to be mild.

The opinion of Claimant’s

moderate limitation in this area is the only finding by the
state medical consultants that would have given the ALJ cause to
consider reaching a different decision.
§§404.1520a(d)(1), 416.920a(d)(1).

9

See 20 C.F.R.

The ALJ gave the opinions of these examiners “some
weight” for two reasons.

Tr. 71.

First, the ALJ noted that the

criteria under consideration changed between the times when Dr.
Harlow and Dr. Cloonan reviewed the case and the time when the
ALJ did so.2

Second, the ALJ observed that Dr. Harlow and Dr.

Cloonan’s analyses did not reflect their review of a significant
amount of Claimant’s medical record, as contrasted with certain
more complete medical reports from Claimant’s counselor Kent,
Dr. Tiffany Sparks, Dr. Dickey, and Dr. Bhanot, all of which
were submitted at the hearing level and were heavily relied upon
by the ALJ.
832-34).

Tr. 71 (citing Tr. 576-608, 730-33, 820-23, 827-30,

Dr. Harlow and Dr. Cloonan’s reviews of Claimant’s

psychological limitations instead relied only upon medical
records from appointments with Dr. C.D. Beckett, Claimant’s
primary care physician, Ms. Kent, and Ms. Glick, which all took

When Dr. Harlow and Dr. Cloonan reviewed the case, the
criteria, known as paragraph B criteria, consisted of:
activities of daily living; maintaining social functioning;
maintaining concentration, persistence, or pace; and repeated
episodes of decompensation. Tr. 71 (referencing 20 C.F.R. Part
404, Subpart P, Appendix. 1 (2016)). After the state medical
examiners reviewed the evidence, the Social Security
Administration updated the paragraph B criteria, which took
effect on January 17, 2017. The revised paragraph B criteria
consisted of: understanding, remembering, and applying
information; interacting with others; concentrating, persisting,
and maintaining pace; and adapting or managing oneself. Tr. 71
(referencing 20 C.F.R. Part 404, Subpart P, Appendix 1 (2017)).
2

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place prior to the respective reviews of the state medical
examiners.

See Tr. 112, 123-27.

Claimant argues that the magistrate judge did not
review whether the ALJ’s evaluation of these medical opinions
was rational and that he did not consider Claimant’s “argument,
citations to binding legal precedence, or probative evidence
that was presented in support of a finding that the ALJ had not
met his obligation to review the State agency medical opinions
under the regulatory requirements.”

ECF No. 17, at 4.

Furthermore, Claimant asserts in her motion for judgment on the
pleadings that the evidence in the record was ignored3 and that
“[a]n ALJ has the obligation to consider all relevant medical
evidence and cannot simply cherry pick facts that support a
finding of nondisability while ignoring evidence that points to
a disability finding.”

ECF No. 10, at 10 (quoting Lewis v.

Berryhill, 858 F.3d 858, 869 (4th Cir. 2017) (citing Denton v.

3

Claimant cites the following evidence, all of which was in the
record before the ALJ: Ms. Kent’s observation that Claimant was
depressed and overwhelmed and her diagnosis of post-traumatic
stress disorder and major depression, Tr. 730-31; Dr. Sparks’
description of Claimant as “emotionless” and feeling overwhelmed
with emotions that she was unable to cope with, Tr. 822; Dr.
Beckett’s finding that Claimant had symptoms of mild depression,
Tr. 880; Dr. Dickey’s statement that she has bad days and has
anxiety that caused depression that arises from people not
respecting and underappreciating her, Tr. 829; and Dr. Bhanot’s
observation that Claimant had severe depression and that her
“fairly bright” mood was influenced by outside stressors, Tr.
829-33.
11

Astrue, 596 F.3d 419, 425 (7th Cir. 2010))).

The particular

evidence in the record before the ALJ, which Claimant argues
supported the findings of the state medical examiners, all
relates to certain statements by treating professionals that
Claimant suffered from significant depression.

Id. at 9-10

(citing Tr.730-31, 822, 829-33, 880).
“Generally, more weight is given to examining sources
than to sources who do not examine.

20 C.F.R. § 404.1527(c)(1).

Similarly, more weight is given to treating sources than to
examining sources. Id. § 404.1527(c)(2).”

Perry v. Colvin, No.

2:15-cv-01145, 2015 WL 1183155, at *9 (S.D.W. Va. Mar. 28,
2016).

“Ultimately, although an ALJ’s duty of explanation is

lesser with respect to a non-treating source than with respect
to a treating physician, that explanation must nonetheless ‘be
sufficiently clear so that a court may meaningfully review his
weighing of the opinion.’” Id. (quoting Miller v. Colvin, No.
2:13-cv-31251, 2015 WL 917772, at *18 (S.D.W. Va. Mar. 3,
2015)); see also Bryant ex rel. Bryant v. Barnhart, 63 Fed.
App’x 90, 95 (4th Cir. 2003) (citing SSR 96-6P, 1996 WL 374180
(July 2, 1996)) (“[T]he ALJ must explain the weight accorded to
non-treating sources.”).

“An ALJ’s determination as to the

weight to be assigned to a medical opinion will generally not be
disturbed absent some indication that the ALJ has dredged up

12

specious inconsistencies, or has not given good reason for the
weight afforded a particular opinion.”

Koonce v. Apfel, 166

F.3d 1209, at *2 (4th Cir. 1999) (table).
The opinions of Dr. Harlow and Dr. Cloonan were based
upon their review of certain medical reports of Dr. Beckett, Ms.
Glick and Ms. Kent rather than an examination or treatment of
Claimant.

The ALJ gave appropriate reasoning for giving

different weight to these opinions.

Tr. 71.

Admittedly, the

changes to the paragraph B criteria in the area at issue,
whether Claimant can concentrate, persist, or maintain pace, is
essentially unchanged from the former criteria, but that was
only part of the ALJ’s reasoning for giving the state consultant
opinions less than full weight.

The more substantial support

for the ALJ’s decision to weigh these opinions less heavily came
from the fact that Dr. Harlow and Dr. Cloonan reviewed medical
records that did not contain all the evidence available to the
ALJ.

In fact, they did not review certain reports of four

treating professionals, Dr. Bhanot, Dr. Dickey, Dr. Sparks and
Ms. Kent, none of which supported the state medical consultants’
finding that Claimant had a moderate limitation in her ability
to concentrate, persist or maintain pace.

The ALJ met the

burden of explaining why she chose to give the opinions of Dr.
Harlow and Dr. Cloonan only “some weight.”

13

Tr. 72.

Given that the ALJ was permitted to give the opinions
of Dr. Harlow and Dr. Cloonan less than full weight, the ALJ’s
finding that Claimant only had a mild limitation in her ability
to concentrate, persist, or maintain pace was supported by
substantial evidence.

Claimant’s argument that the ALJ ignored

evidence that demonstrated otherwise is not on point, as the
evidence to which she cites does not relate to her abilities to
concentrate, persist, or maintain pace, but rather identifies
numerous acknowledgments of her depression and its varying
severity.4

ECF No. 10, at 9-10.

The ALJ based her decision on

the evidence and opinions provided by the treating professionals
that directly related to that third functional area, and she
reasonably chose to weigh some of those opinions differently.
See 20 CFR §§ 404.1520a(c)-(d), 416.920a(c)-(d); Bryant, 63 Fed.
App’x at 95; see also Johnson, 434 F.3d at 653.

The ALJ noted that Claimant’s depression and anxiety were medically
determinable impairments but found that the impairments would “not cause more
than minimal limitation in claimant’s ability to perform basic mental work
activities.” Tr. 70.
4

14

III. Conclusion

Accordingly, having received the PF&R and Claimant’s
objections, and having reviewed the record de novo, it is
ORDERED:
1. That the Claimant’s objections to the PF&R be, and hereby
are, overruled in part and sustained in part as set forth
above;
2. That the proposed findings and recommendations of the
magistrate judge be, and hereby are, adopted in full except
as noted otherwise in the text of the foregoing memorandum
opinion and order;
3. That the Claimant’s request for judgment on the pleadings
be, and hereby is, denied;
4. That the Commissioner’s motion for judgment on the
pleadings be, and hereby is, granted;
5. That the decision of the Commissioner be, and hereby is,
affirmed; and
6. That Claimant’s action be, and hereby is, dismissed and
removed from the docket of the court.

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The Clerk is directed to forward copies of this
memorandum opinion and order to all counsel of record and the
United States Magistrate Judge.
Enter: September 28, 2018

John T. Copenhaver, Jr.
United States District Judge

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