Arthur v. Colvin
Filing
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MEMORANDUM OPINION AND ORDER denying Claimant's 18 Objections to Magistrate Judge Aboulhosn's 17 Proposed Findings and Recommendations; adopting and incorporating herein the 17 Proposed Findings and Recommendations; denying Claimant 039;s 12 Motion for Judgment on the Pleadings; granting Defendant's 13 Motion for Judgment on the Pleadings; and affirming the final decision of the Commissioner. Signed by Judge Robert C. Chambers on 1/30/2017. (cc: counsel of record; any unrepresented parties) (jsa)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
CHARLES DEREK ARTHUR,
Plaintiff,
v.
CIVIL ACTION NO. 3:15-13159
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
This action seeks review of the Social Security Commissioner’s final decision
denying Plaintiff Charles Derek Arthur’s (Claimant’s) application for Disability Insurance
Benefits (“DIB”). Pursuant to 28 U.S.C. § 636(b)(1)(B), this action was referred to United States
Magistrate Judge Omar J. Aboulhosn for proposed findings of fact and recommendation for
disposition. In his Proposed Findings and Recommendation, the Magistrate Judge recommends
Claimant’s Motion for Judgment on the Pleadings be denied, that the like motion of Defendant be
granted, the decision of the Commissioner be affirmed, and that this matter be dismissed from the
docket of the Court. ECF No. 17. Claimant now objects to the proposed findings. ECF No. 18. For
the reasons set forth below, the Court DENIES Claimant’s objection and ACCEPTS AND
INCOPORATES herein the Findings and Recommendation of the Magistrate Judge.
I.
STANDARD OF REVIEW
This Court must “make a de novo determination of those portions of the . . .
[Magistrate Judge’s] proposed findings or recommendations to which objection is made.” 28
U.S.C. § 636(b)(1)(C). However, the scope of this Court’s review of the Commissioner’s decision
is narrow. This Court “must uphold the factual findings of the [Commissioner] if they are
supported by substantial evidence and were reached through application of the correct legal
standard.” Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (citing 42 U.S.C. § 405(g), which
states, in part, “[t]he findings of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . . .”) (other citations omitted), superseded on other
grounds, 20 C.F.R. § 416.927(d)(2); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (also
citing 42 U.S.C. § 405(g), among other authorities). “Substantial evidence” is defined as:
“evidence 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.”
Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972) (quoting Laws v. Celebrezze, 368 F.2d
640, 642 (4th Cir. 1966) (internal quotation marks omitted)); see also Craig, 76 F.3d at 589.
It is the role of the Administration Law Judge (ALJ), not this Court, to make
findings of fact and resolve evidentiary conflicts. Hays, 907 F.2d at 1456. “‘Where conflicting
evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility
for that decision falls on the [Commissioner] (or the [Commissioner]’s designate, the ALJ).’”
Craig, 76 F.3d at 589 (quoting Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987)). “The issue
before [this Court], therefore, is not whether [Claimant] is disabled, but whether the [ALJ]’s
finding that [he] is not disabled is supported by substantial evidence and was reached based upon
a correct application of the relevant law.” Id. (citing Coffman v. Bowen, 829 F.2d 514, 517 (4th
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Cir. 1987)). This Court is required to “uphold the [Commissioner]’s decision even should the court
disagree with such decision as long as it is supported by ‘substantial evidence.’” Blalock, 483 F.2d
at 775 (citations omitted).
II.
DISCUSSION
In this case, Claimant raises two related issues. First, Claimant argues that the
Magistrate Judge erred in finding that the ALJ was not required to develop the record with respect
to Claimant’s representation he was illiterate. Second, Claimant asserts the Magistrate Judge erred
in accepting the ALJ’s finding that Claimant’s statements were not entirely credible. Upon de novo
review, the Court finds both objections without merit.
A.
Development of the Record
With respect to his first objection, Claimant alleges he is illiterate and the ALJ erred
in finding that he has a “limited education.” Pursuant to 20 C.F.R. § 404.1564(b)(1), “illiteracy”
is defined as “the inability to read or write. We consider someone illiterate if the person cannot
read or write a simple message such as instructions or inventory lists even though the person can
sign his or her name. Generally, an illiterate person has had little or no formal schooling.” 20
C.F.R. § 404.1564(b)(1). On the other hand, § 404.1564(b)(3) defines a “limited education” as
“ability in reasoning, arithmetic, and language skills, but not enough to allow a person with these
educational qualifications to do most of the more complex job duties needed in semi-skilled or
skilled jobs. We generally consider that a 7th grade through the 11th grade level of formal
education is a limited education.” 20 C.F.R. § 404.1564(b)(3).
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In her decision, the ALJ found that, although Claimant testified he is illiterate, he
“noted that he attended adult literacy classes, and read close to the second grade level.” Decision
of the ALJ, at 8 (R. at 100) (April 11, 2014), ECF No. 9-3, at 30. The ALJ also found Claimant
stated “in a Disability Report that he could read and write, and reported in a Function Report that
he was able to pay bills, handle a savings account, and use a checkbook and had to read instructions
multiple times.” Id. at 9, (R. at 101), ECF No. 9-3, at 31. Given this evidence, the ALJ found
Claimant met the definition of having a “limited education” under § 404.1564(b)(3).
In his objection, Claimant argues the ALJ was required to develop the record with
respect to his literacy, and the Magistrate Judge erred in his analysis of the ALJ’s decision by
pointing to evidence that the ALJ did not rely upon at steps four and five of the sequential process.
Specifically, the Magistrate Judge noted there was evidence from July 2012 showing Claimant’s
intellectual functioning was in the average range and, despite the fact Claimant only attended
school until the ninth grade and was represented by counsel, he failed to submit any school records
supporting his claim of illiteracy.1 Additionally, Claimant states he is not required to prove deficits
in adaptive functioning to show he is currently illiterate. Although Claimant agrees that
educational evidence may be probative with respect to his “adaptive functioning and literacy
during the development period, [he asserts] it would not provide conclusive evidence that [he] was
literate or functioned at the level of a ‘limited education’ at the time of his hearing, which occurred
nearly 40 years after he dropped out of high school.” Pl’s. Obj. to Mag. Judge’s PF&R, at 3, ECF
No. 18. Given there is no literacy testing in the record, Claimant argues it was the ALJ’s
At step two, the ALJ found Claimant’s overall intellectual functioning was noted to be in
the average range in July 2012 and he only had a ninth grade education. Id. at 4, (R. at 96), ECF
No. 9-3, at 26.
1
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responsibility to develop the record and require such testing be performed. Claimant insists this
responsibility exists irrespective of the fact he was represented by counsel.
An ALJ, however, is not required to order a consultative examination where the
evidence is sufficient to analyze a claimant’s functional abilities. See Bishop v. Barnhart, 78
F. App'x 265, 268 (4th Cir. 2003) (stating “the regulations state that the ALJ has discretion in
deciding whether to order a consultative examination”); 40 C.F.R. § 404.1519a(b) (providing, in
part, “[w]e may purchase a consultative examination to try to resolve an inconsistency in the
evidence, or when the evidence as a whole is insufficient to allow us to make a determination or
decision on your claim”). Here, the Court finds a consultative examination was unnecessary
because substantial evidence exists in the record to support the ALJ’s decision. Even if the Court
sets aside the fact Claimant did not submit his school records and a 2012 cognitive evaluation
showed he was of average intellectual functioning, the other evidence of record indicating he can
read, write, pay bills, and handle savings and checking accounts is sufficient to show he meets the
definition of a “limited education” and he does not meet the definition of being illiterate. Therefore,
the Court finds the ALJ did not err by not ordering literacy testing.2
B.
Credibility Analysis
Claimant further argues it was error for the Magistrate Judge to find the ALJ’s
credibility analysis supported a finding Claimant was able to read and write. At the time the ALJ
issued her decision, Social Security Rule (SSR) 96-7p provided:
2
In fact, Defendant points out that Claimant never even asked for a consultative evaluation
for literacy at the hearing. In addition, the Magistrate Judge never said Claimant was required to
submit school records in order to prove he is illiterate.
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When the existence of a medically determinable physical or mental
impairment(s) that could reasonably be expected to produce the
symptoms has been established, the intensity, persistence, and
functionally limiting effects of the symptoms must be evaluated to
determine the extent to which the symptoms affect the individual's
ability to do basic work activities. This requires the adjudicator to
make a finding about the credibility of the individual's statements
about the symptom(s) and its functional effects.
SSR 96–7p, 1996 WL 374186, at *1 (July 2, 1996). In determining Claimant’s residual functional
capacity, the ALJ discussed both Claimant’s medical evidence and evidence of his literacy,
including Claimant’s own testimony he was illiterate, hid his illiteracy from his employers, and
had his driver’s license test read to him. Upon consideration of the evidence, the ALJ found “the
claimant’s medically determinable impairments could reasonably be expected to cause the alleged
symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting
effects of these symptoms are not entirely credible for the reasons explained in this decision.”
Decision of the ALJ, at 8, (R. 100), ECF No. 9-3, at 30.3
Almost two years after the ALJ issued her decision,4 SSR 96–7p was rescinded and
replaced by SSR 16-3p. The new Rule provides, in part:
Adjudicators must limit their evaluation to the individual's
statements about his or her symptoms and the evidence in the record
that is relevant to the individual's impairments. In evaluating an
individual's symptoms, our adjudicators will not assess an
individual's overall character or truthfulness in the manner typically
used during an adversarial court litigation. The focus of the
evaluation of an individual's symptoms should not be to determine
whether he or she is a truthful person. Rather, our adjudicators will
focus on whether the evidence establishes a medically determinable
impairment that could reasonably be expected to produce the
3
Claimant also states he submitted evidence that he could not spell simple words and
someone else completed his Social Security forms.
4
The ALJ issued her decision on April 11, 2014.
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individual's symptoms and given the adjudicator's evaluation of the
individual's symptoms, whether the intensity and persistence of the
symptoms limit the individual's ability to perform work-related
activities[.]
SSR 16-3p 2016 WL 1119029, at *10 (S.S.A. Mar. 16, 2016). The new Rule eliminates the term
“credibility” and clarifies “adjudicators will not assess an individual's overall character or
truthfulness.” Id. at *1, 10.
In light of this change, Claimant argues the Court should analyze the ALJ’s findings
under the new Rule because it clarifies, rather than changes, existing law. See Cole v. Colvin, 831
F.3d 411, at 412 (7th Cir. 2016) (“The change in wording is meant to clarify that administrative
law judges aren't in the business of impeaching claimants' character[.]”5); Holbert v. Colvin, No.
2:15-CV-11550, 2016 WL 4939114, at *13 n.5 (S.D. W. Va. June 9, 2016) (Eifert, Mag.)
(evaluating claim under 16-3p as it merely clarified the existing law); but see Kinchen v. Colvin,
No. 3:16CV55(JAG), 2016 WL 7646364, at *7 n.2 (E.D. Va. Dec. 20, 2016), report and
recommendation adopted, No. 3:16CV55 (JAG), 2017 WL 57135 (E.D. Va. Jan. 4, 2017)
(reviewing decision under Rule 96-7p because the decision was issued before 16-3p took effect);
Piper v. Colvin, No. 2:15-CV-12555, 2016 WL 5109521, at *4 n.2 (S.D. W. Va. Sept. 20, 2016)
(Johnston, J.) (“SSR16-3p is effective only to decisions issued after its effective date of March 28,
2016.”). Thus, Claimant insists his credibility should not have been considered with respect to his
ability to read or write. However, as noted by Defendant, regardless of what Rule applies in this
case, the result is the same “because the two-step process and factors for evaluating a claimant's
subjective symptoms remains substantially the same as that for assessing the credibility of a
5
The Seventh Circuit said there were some areas in which an ALJ would still have to assess
credibility, such as reports of pain that cannot be credited or rejected by medical evidence. Id.
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claimant's statements under SSR 96-7p.” Johnson v. Colvin, No. Civ. Act. No. 6:15-4419-RBHKFM, 2017 WL 238454, at *10 n.4 (D. S.C. Jan. 3, 2017), report and recommendation adopted,
No. 6:15-CV-04419-RBH, 2017 WL 228004 (D. S.C. Jan. 19, 2017); see also Vest v. Colvin, No.
2:15-CV-05886, 2016 WL 5334668, at *5 n.5 (S.D. W. Va. Sept. 22, 2016) (Johnston, J.) (finding
“that the ALJ's analysis of Plaintiff's subjective symptoms, even if it speaks in terms of ‘credibility’
as described in SSR 96–7p, employs the correct process and evaluates the correct factors under
either ruling, and so makes no finding as to SSR 16–3P's retroactive application”).6
Under the first step, “there must be objective medical evidence showing ‘the
existence of a medical impairment(s) which results from anatomical, physiological, or
psychological abnormalities and which could reasonably be expected to produce the . . . symptoms
alleged.” Craig, 76 F.3d at 594 (quoting 20 C.F.R. §§ 416.929(b) & 404.1529(b)) (emphasis from
Craig deleted). If a claimant meets this threshold obligation, the ALJ proceeds to the second step,
which entails evaluating “the intensity and persistence of the claimant's [symptoms], and the extent
to which it affects [the claimant's] ability to work.” Id. at 595 (citing 20 C.F.R. §§ 416.929(c)(1)
& 404.1529(c)(1)). At this second step, the ALJ has full discretion to weigh Claimant’s statements
with the objective evidence. The ALJ “will consider whether there are any inconsistencies in the
evidence and the extent to which there are any conflicts between [a claimant’s] statements and the
rest of the evidence, including [the claimant’s] history, the signs and laboratory findings, and
statements by [the claimant’s] treating or nontreating source or other persons about how [the
claimant’s] symptoms affect” him or her. 20 C.F.R. § 404.1529(c)(4), in part.
In Vest, the Honorable Thomas E. Johnston further stated “there exists no binding
authority addressing whether [SSR 16-3p] should apply retroactively to SSA decisions that were
rendered before the ruling was issued.” Id. (citation omitted).
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In this case, the ALJ found “that the claimant’s medically determinable
impairments could reasonably be expected to cause the alleged symptoms[.]” Decision of the ALJ,
at 8 (R. at 100) ECF No. 9-3, at 30. In other words, the ALJ found Claimant met the threshold
requirements of step one. At step two, the ALJ’s evaluation considered the correct factors and
employed the correct process under either Rule, despite the fact it was couched in terms of
credibility as was written in the Rule that existed at the time of the decision. That is, the ALJ
weighed Claimant’s statements against the rest of the evidence and found the other evidence did
not support Claimant’s assertion of illiteracy. Nevertheless, the ALJ still determined Claimant
“should not have a job where he is required to read instructions or write reports.” Id. at 7 (R. at
99), ECF No. 9-3, at 29. Given this analysis, the Court finds no merit to Claimant’s objection.
III.
CONCLUSION
Accordingly, for the foregoing reasons, the Court DENIES Claimant’s Objections
to Magistrate Judge’s Findings and Recommendation (ECF No. 18), ADOPTS AND
INCOPORPORATES HEREIN the Findings and Recommendations (ECF No. 17), DENIES
Claimant’s Motion for Judgment on the Pleadings (ECF No. 12), GRANTS Defendant’s Motion
for Judgment on the Pleadings (ECF No. 13), and AFFIRMS the final decision of the
Commissioner.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record
and any unrepresented parties.
ENTER:
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January 30, 2017
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