Six v. Colvin
Filing
14
MEMORANDUM OPINION AND ORDER adopting the 11 Proposed Findings and Recommendations by Magistrate Judge Eifert; denying Plaintiff's 7 Brief in Support of Motion for Judgment on the Pleadings; granting Defendant's 10 Brief in Support of Defendant's decision; affirming the ALJ's decision; and dismissing this matter from the Court's docket. Signed by Judge Robert C. Chambers on 12/1/2016. (cc: counsel of record; any unrepresented parties) (jsa)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
DONNA SIX,
Plaintiff,
v.
CIVIL ACTION NO. 3:15-cv-14377
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
The plaintiff, Donna Six, instituted this action under 42 U.S.C. § 405(g) on October 27,
2015, seeking judicial review of the Commissioner’s final decision denying her application for
Disability Insurance Benefits. See Pl.’s Compl., ECF No. 1. By standing order, this action was
referred to the Honorable Cheryl A. Eifert, United States Magistrate Judge, who filed her Proposed
Findings and Recommendations (PF&R) on October 25, 2016 (ECF No. 11).
The PF&R
recommends that this Court deny Plaintiff’s request for judgment on the pleadings, grant
Defendant’s request to affirm the Commissioner’s final decision, affirm the final decision, and
dismiss this matter from the Court’s docket.
Plaintiff filed an objection to the PF&R on November 10, 2016 (ECF No. 12) regarding
the Administrative Law Judge’s (ALJ) step three analysis, and Defendant filed a response on
November 14, 2016 (ECF No. 13). The Court will assess the Magistrate Judge’s PF&R under a
de novo standard of review. 28 U.S.C. § 636(b)(1)(C).
I.
BACKGROUND
ALJ H. Munday decided Plaintiff’s disability claim, determining that Plaintiff suffered
from unspecified connective tissue disorder and systematic lupus erythematosus (SLE), both
considered severe impairments. Decision of the ALJ, ECF No. 6-2, at 3, Tr. 14. The ALJ also
determined that Plaintiff’s medical record did not support a definitive diagnosis of narcolepsy or
postural hypotension, so those impairments were not considered severe. Id. at 4, Tr. 15. Other
medical concerns that were listed as non-severe included gastroesophageal reflux disease,
migraines, pleurisy, hypothyroidism, Raynaud’s phenomenon, carpal tunnel syndrome, and benign
essential hypertension. Id. These conditions were treated successfully with medicine and did
not cause a significant limitation on Plaintiff’s ability to perform basic activities. Id.
The ALJ compared Plaintiff’s impairments to the Listings in 20 C.F.R. § 404.1520,
Appendix 1, specifically considering unspecified connective tissue disorder under Section 14.06
of the Listings and SLE under Section 14.02. Id. at 6, Tr. 17. The ALJ did not find any evidence
to support the conditions required under either listing. Id. The ALJ then delved into Plaintiff’s
medical record to determine her residual functional capacity and ultimately concluded that Plaintiff
could continue her past work as a systems administrator, as well as work in semi-skilled, light
exertion occupations such as a retail salesperson, case aide, or hotel clerk. Id. at 6-11, Tr. 17-22.
Based on these conclusions, the ALJ denied Plaintiff’s application for disability benefits.
The PF&R contains a thorough analysis of relevant information on Plaintiff’s personal,
medical, and procedural history. Plaintiff originally filed her Title II application for Disability
Benefits for a disability onset date of March 11, 2011. After a series of decisions and appeals, the
Appeals Council denied review on August 31, 2015, rendering the ALJ decision dated June 3,
2014 the Commissioner’s final decision.
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II.
STANDARD OF REVIEW
In reviewing the PF&R, 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).
The scope of this Court’s review of the Commissioner’s decision,
however, is narrow. This Court must uphold the Commissioner’s factual findings “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) (providing
“findings of the Commissioner of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive”) (other citation omitted)). Substantial evidence is “more than a
mere scintilla” of evidence, and requires only such evidence “as a reasonable mind might accept
as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation
and citation omitted).
In conducting this review, this Court also must address whether the ALJ analyzed all of the
relevant evidence and sufficiently explained her rationale in crediting or discrediting certain
evidence. See Milburn Colliery Co. v. Hicks, 138 F.3d 524, 528 (4th Cir. 1998); Murphy v.
Bowen, 810 F.2d 433, 437 (4th Cir. 1987) (remanding claim for disability benefits because ALJ
did not adequately explain why he credited one doctor’s views over those of another). It is the
ALJ’s duty, however, not the courts, “to make findings of fact and to resolve conflicts in the
evidence.” Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (citations omitted). If there is
conflicting evidence and reasonable minds could differ as to whether a claimant is disabled, it is
the Commissioner or his designate, the ALJ, who makes the decision. Craig, 76 F.3d at 589
(citation omitted). “The issue before [this Court], therefore, is not whether [Plaintiff] is disabled,
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but whether the ALJ’s finding that she is not disabled is supported by substantial evidence and was
reached based upon a correct application of the relevant law.” Id. (citation omitted).
Applying these standards, the Court has reviewed de novo the portions of the PF&R to
which Plaintiff objected.
For the reasons set forth below, the Court ADOPTS AND
INCORPORATES HEREIN the PF&R of the Magistrate Judge, DENIES Plaintiff’s brief for
judgment on the pleadings, and GRANTS Defendant’s brief in support of Defendant’s decision.
The ALJ decision is AFFIRMED, and this case will be DISMISSED from the docket.
III.
DISCUSSION
The Social Security Regulations establish a five-step process to evaluate whether an
individual is entitled to disability benefits. See 20 C.F.R. § 404.1520. The first step questions
whether a claimant is currently engaged in substantial gainful employment that would prevent a
benefit award. 20 C.F.R. § 404.1520(a)(4)(i). If not, the second step looks to whether the
claimant has a severe impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant has a severe
impairment, the third step requires the ALJ to compare the impairment to the Listings in Appendix
1 to determine if the impairments meet or equal the criteria. 20 C.F.R. § 404.1520(a)(4)(iii). If
the claimant meets the criteria of the listing, the claimant will be considered disabled. Id. If not,
the fourth and fifth steps look to the claimant’s residual functional capacity and whether the
claimant can continue to engage in substantial gainful activity despite the impairments. 20 C.F.R.
§ 404.1520(a)(4)(iv-v).
In this case, Plaintiff challenges the ALJ’s explanation at the third step and objects to the
Magistrate Judge’s finding that such error was harmless error. See Pl.’s Obj., ECF No. 12, at 2.
Plaintiff does not challenge the ALJ’s decision to compare Plaintiff’s impairments with the
Listings under Sections 14.06 or 14.02, nor does Plaintiff argue that an additional Listing should
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have been identified. Rather, Plaintiff attacks the lack of explanation contained within the ALJ’s
step three analysis, arguing that the deficiency cannot be supported by other areas in the decision.
The ALJ concluded that Plaintiff did “not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1.” See Decision of the ALJ, ECF No. 6-2, at 6, Tr. 17. The subsequent two
paragraphs detail the Listings of Impairments requirements for both Sections 14.06 and 14.02. 1
Id. The ALJ found “no evidence” to meet one of the listed impairments and proceeded to steps
four and five of the analysis. Id.
Plaintiff’s challenge focuses on the Fourth Circuit’s rulings in Radford and Fox. In
Radford, the district court reversed the ALJ’s decision because the ALJ failed to provide evidence
supporting his conclusion that Mr. Radford did not meet one of the listing impairments in step
three. Radford v. Colvin, 734 F.3d 288, 292 (4th Cir. 2013). The decision stated only that the
ALJ “considered, in particular, the listings above, and had noted that state medical examiners had
also concluded after reviewing the evidence that no listing [was] met or equaled.” Id. (internal
1
Both Section 14.02 for SLE and 14.06 for undifferentiated and mixed connective tissue
disease are evaluated with the same test. A claimant will meet the listing under either 14.02 or
14.06 with:
“A. Involvement of two or more organs/body systems, with:
1. One of the organs/body systems involved to at least a moderate
level of severity[,] and 2. At least two of the constitutional
symptoms or signs (severe fatigue, fever, malaise, or involuntary
weight loss)[;] or
B. Repeated manifestations of [impairment], with at least
two of the constitutional symptoms or signs (severe fatigue, fever,
malaise, or involuntary weight loss) and one of the following at a
marked level: 1. Limitation of activities of daily living[,] 2.
Limitation in maintaining social functioning[,] 3. Limitation in
completing tasks in a timely manner due to deficiencies in
concentration, persistence, or pace.”
20 C.F.R. Part 404, Subpt. P, App’x 1.
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quotations omitted). The Fourth Circuit affirmed the reversal, holding that the ALJ conducted
“insufficient legal analysis” that made “it impossible for a reviewing court to evaluate whether
substantial evidence supports the ALJ’s findings.” Id. at 295. “If the reviewing court has no way
of evaluating the basis for the ALJ’s decision, then ‘the proper course, except in rare
circumstances, is to remand to the agency for additional investigation or explanation.’” Id.
(quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)). The court focused on
the medical evidence from the record and within the written decision when making its
determination. See id. (“A full explanation by the ALJ is particularly important in this case
because Radford’s medical record includes a fair amount of evidence supportive of his claim.”).
“Given the depth and ambivalence of the medical record, the ALJ’s failure to adequately explain
his reasoning precludes this Court and the district court from undertaking a meaningful review of
the finding that Radford did not satisfy [the] Listing.” Id. at 296. In fact, the conflicting evidence
supporting Radford’s claim for disability led the district court to take an impermissible step in
remanding the case specifically to issue benefits, which the Fourth Circuit held as an abuse of
discretion. Id. at 294-95.
In Fox, the Fourth Circuit essentially reiterated Radford’s holding. In that case, the
magistrate judge recommended affirming the ALJ decision because the entire decision allowed for
meaningful judicial review. Fox v. Colvin, 632 F. App’x 750, 753 (4th Cir. 2015). The ALJ’s
decision specified that treating physicians did not equate Mr. Fox’s medical history to one of the
Listings, “nor does the evidence show medical findings that are the same or equivalent to those of
any listed impairment.” Id. at 754-55 (mentioning the two listing sections referenced). The
Fourth Circuit found that the analysis was “perfunctory and offered nothing to reveal why [the
ALJ] was making his decision.” Id. at 755. The court again focused on Mr. Fox’s specific
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medical evidence in the record that demonstrated a possible finding that Mr. Fox could meet the
listing requirements. Id. (finding that “inconsistent evidence abounds” in the record without
explanation as to why that evidence did not meet the Listings). Although the district court found
substantial evidence elsewhere in the ALJ’s decision, the Fourth Circuit highlighted Radford,
stating “we emphasized that it was ‘not our province—nor the province of the district court—to
engage in these [fact-finding] exercises in the first instance.’” Id. at 754 (quoting Radford, 734
F.3d at 296). Because conflicting evidence existed in the record without explanation as to why it
should not apply to the Listings, the court found remand appropriate. Id. at 756.
However, both Radford and Fox had plaintiffs who had conflicting medical evidence in the
record that the ALJ did not explain in step three of the analysis, or elsewhere in the decision.
Judge Thomas E. Johnston, from this District, has held that the Radford and Fox decisions do not
preclude a district court from affirming an ALJ’s decision when “the ALJ’s opinion read as a whole
provides substantial evidence to support the ALJ’s decision at step three.” McDaniel v. Colvin,
Civ. No. 2:14-cv-28157, 2016 WL 1271509, at *4 (S.D.W. Va. Mar. 31, 2016) (internal quotations
and citations omitted).
If the decision contains elsewhere “an equivalent discussion of the
medical evidence relevant to [the] Step Three analysis”, the district court need not remand the case
to reach the same eventual conclusion. Id. (citing Capillo v. Comm’r of Soc. Sec., Civ. No.
5:15CV28, 2015 WL 6509127, at *3 (N.D.W. Va. Oct. 28, 2015)); see also Meador v. Colvin, Civ.
No. 7:13-CV-214, 2015 WL 1477894, at *3 (W.D. Va. Mar. 27, 2015) (“A cursory explanation in
step three is satisfactory so long as the decision as a whole demonstrates that the ALJ considered
the relevant evidence of record and there is substantial evidence to support the conclusion.”).
Although the ALJ in McDaniel stated succinctly that “no evidence” existed to support the Listings
requirements, the court found that the ALJ’s final determination regarding joint dysfunction was
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supported elsewhere in the decision.
McDaniel, 2016 WL 1271509, at *6.
Because the
explanations and discussion were within the decision itself, the court did not need to “look beyond
the ALJ’s opinion to find substantial evidence supporting the ALJ’s step-three determination.”
Id. However, if the ALJ does not explain her reasoning elsewhere in the record, as the ALJ in
McDaniel failed to do in regards to nerve root compression, then remand is appropriate. Id. at *8.
Thus, the court could affirm the ALJ determination as long as substantial evidence existed within
the written decision.
The same is true in this case. Although it is better practice for the ALJ to include
discussion within the step three analysis, the Court does not need to conduct any fact-finding or
extensive investigation to find substantial evidence within the ALJ decision to support the
determination that Plaintiff did not meet the Listings requirements. In order to meet either of the
relevant Listings, Plaintiff would have to prove moderate severity for one of the organs or body
systems and two of the constitutional symptoms, or prove repeated manifestations of the disease,
with two of the constitutional symptoms, and a limitation in daily living, social functioning, or
completing tasks at the marked level. 20 C.F.R. Part 404, Subpt., App’x 1. In Plaintiff’s Brief
in Support for Judgment on the Pleadings, Plaintiff argues that chronic pleurisy and hypertension
with possible hypotension satisfies the moderate severity requirement for the organs or body
systems. Pl.’s Brief in Supp., ECF No. 7, at 10. The constitutional symptoms alleged include
her chronic fatigue and malaise, explained as migraine headaches, dizziness, and drifting. Id.
However, as the Magistrate Judge thoroughly explains in the PF&R, the ALJ fully
considered these medical diagnoses and found that they did not meet the severity requirements that
the Listings criteria require. See Proposed Findings & Recommendations, ECF No. 11, at 21-29.
Regarding the assertion of moderately severe pleurisy and hypertension, the ALJ determined that
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neither consisted of a severe condition and could be adequately treated with medicine. Decision
of the ALJ, ECF No. 6-2, at 4, Tr. 12. Although only moderate severity is required for the Listings,
the ALJ determined that Plaintiff’s hypertension and pleurisy were non-severe as they could be
treated adequately with medicine, to which Plaintiff responded well, and had been found to be
stable in the medical diagnoses. Id. at 5, Tr. 16. One of the doctor’s reports also specify that
Plaintiff’s pleurisy symptoms were completely resolved in 2012. Id. Moreover, Plaintiff told
her doctor that “her disease was reasonably controlled and she could manage the current level of
her symptoms” in 2013. Id. at 8, Tr. 19. Hypotension was never diagnosed, and the ALJ did not
regard the condition as a “medically determinable impairment” to consider in the disability benefit
determination. Id. at 4, Tr. 15. There is no conflicting evidence in the record to suggest that any
of these conditions were actually moderately severe, and the ALJ adequately explained why all
three were medically manageable and how Plaintiff’s conditions were routinely considered stable
by her doctors.
Regarding Plaintiff’s alleged constitutional symptoms, there is evidence in the record and
explained by the ALJ that Plaintiff’s fatigue was not severe and that her migraines did not rise to
the level of malaise. “Severe fatigue means a frequent sense of exhaustion that results in
significantly reduced physical activity or mental function.” 20 C.F.R. Part 404, Subpt., App’x 1.
The ALJ reported that the doctors considered Plaintiff’s fatigue stable and that Plaintiff herself
denied having any difficulty with sleeping. Decision of the ALJ, ECF No. 6-2, at 7, Tr. 18; see
also id. at 9, Tr. 20. Having her fatigue stabilized does not result in a severe finding for the
constitutional symptom, especially because there was no objective medical evidence of
significantly reduced activity. Id. at 9, Tr. 20 (doctor finding that Plaintiff “was independent in
all activities of daily living”). Additionally, the ALJ found that Plaintiff’s testimony at the
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hearing was not fully credible, specifically with her references to her fatigue. Id. at 7, Tr. 18
(“[T]he claimant’s statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible ….”). The ALJ fully explained that the objective medical
evidence did not support the severity of Plaintiff’s complaints.
Id. (finding that Plaintiff’s
testimony of sleeping for twelve hours some days and sometimes taking naps was not supported
by medical evidence). Thus, the ALJ adequately described why Plaintiff’s fatigue was not severe
in other parts of the decision.
Moreover, malaise is defined as “frequent feelings of illness, bodily discomfort, or lack of
well-being that result in significantly reduced physical activity or mental function.” 20 C.F.R.
Part 404, Subpt., App’x 1. Migraines may be a symptom for malaise, but migraines alone will
not lead to an automatic conclusion of the constitutional symptom. The ALJ noted that Plaintiff
used to get three to four migraines a month, but that she now only has one or two migraines a
month and sometimes none at all. Decision of the ALJ, ECF No. 6-2, at 4, Tr. 15; see also id. at
5, Tr. 16 (listing numerous denials of having a headache during doctor visits). Plaintiff described
some brief dizziness to her doctor in 2012, but the doctor found “no actual vertigo or
lightheadedness.” Id. at 8, Tr. 19. Additionally, the ALJ relied on the medical evidence that
showed that Plaintiff engaged in regular daily activities and was not affected by her symptoms to
a significantly reduced level. Id. at 9, Tr. 20 (referencing a functional questionnaire in which
Plaintiff described walking her dogs, preparing meals, doing housework, driving, shopping,
making jewelry, and attending social functions). Thus, when looking at the entire decision, the
Court finds that the ALJ adequately describes how Plaintiff’s symptoms do not meet the Listings
requirements.
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Throughout the ALJ’s decision, the Plaintiff’s credibility is questioned and the objective
medical evidence is described. The ALJ thoroughly discusses Plaintiff’s alleged symptoms and
conditions, including the severity of each. Although the ALJ did not repeat the analysis in the
third step with the comparison to the Listings, the rest of the decision supports the finding that
Plaintiff’s conditions do not meet either of the Listings requirements. In affirming the ALJ’s
decision, neither this Court nor the Magistrate Judge had to engage in a fact-finding mission. The
ALJ’s written decision contains the substantial evidence necessary to support the finding that
Plaintiff does not meet the disability requirements to obtain benefits. Thus, the ALJ decision must
be affirmed.
IV.
CONCLUSION
Although it is not this Court’s role to engage in a fact-finding expedition to support the
ALJ decision, the evidence to explain why Plaintiff does not meet the Listing criteria is explained
fully within the ALJ report. The Court finds the ALJ decision amenable to meaningful review
and supported with substantial evidence to justify the denial of Plaintiff’s disability benefits.
Accordingly, having reviewed the PF&R and the Plaintiff’s objections, and having reviewed the
record de novo, it is ORDERED that: (1) the PF&R be, and hereby is, ADOPTED AND
INCORPORATED HEREIN; (2) Plaintiff’s brief for judgment on the pleadings is DENIED; (3)
the brief in support of Defendant’s decision is GRANTED; (4) the ALJ decision is AFFIRMED;
and (5) this matter is DISMISSED from the Court’s docket.
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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December 1, 2016
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