Smith v. Colvin

Filing 12

MEMORANDUM OPINION AND ORDER rejecting the 10 Proposed Findings and Recommendations by Magistrate Judge Dwane L. Tinsley and remanding this case to the Magistrate Judge for further proceedings consistent with this Memorandum Opinion and Order. Signed by Judge Robert C. Chambers on 3/29/2018. (cc: counsel of record; any unrepresented parties) (jsa)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

JONIE LEE SMITH,
Plaintiff,
v.

CIVIL ACTION NO. 3:16-11868

NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
This action for judicial review of an administrative determination under the Social Security
Act was referred to the Honorable Dwane L. Tinsley, United States Magistrate Judge, for proposed
findings of fact and recommendation for disposition (“PF&R”) pursuant to 28 U.S.C.
§ 636(b)(1)(B). Now pending before the Court are Plaintiff’s and Defendant’s Briefs in Support
of Judgment on the Pleadings. ECF Nos. 8 & 9. In the PF&R, the Magistrate Judge recommends
that the Court DENY Defendant’s Motion, GRANT Plaintiff’s Motion, REVERSE the final
decision of the Commissioner, and REMAND this case to the Social Security Administration for
further proceedings. Defendant objects. ECF. No. 11. For the following reasons, the Court
REJECTS the Magistrate Judge’s PF&R and REMANDS this case to the Magistrate Judge for
further proceedings consistent with this Memorandum Opinion and Order.

I.

Background

On October 29, 2013, Plaintiff filed a claim for supplemental security disability benefits
with the Social Security Administration, alleging disability beginning on October 1, 2009. Her

claim was initially denied on February 21, 2014, and denied upon reconsideration on June 16,
2014. Tr. 95-99 & 106-08, ECF No. 7-5, at 2-6 & 13-15. Plaintiff filed a request for hearing on
July 1, 2014. See Tr. at 113-15, ECF No. 7-5, at 20-22. An administrative hearing was held on
April 28, 2015, during which an Administrative Law Judge (“ALJ”) heard evidence on Plaintiff’s
claims. Tr. at 24-69, ECF No. 7-3, at 2-47. Both Plaintiff and a Vocational Expert testified.
Plaintiff’s alleged onset date of disability also was amended to October 29, 2013. Tr. 29-30 & 198,
ECF No. 7-3, at 7-8, ECF No. 7-7, at 30.
After consideration of the case, the ALJ entered a decision on June 12, 2015, finding that
Plaintiff was not disabled. Tr. at 10-20, ECF No. 7-2, at 11-21. Plaintiff sought review of the ALJ’s
decision by the Appeals Council on August 12, 2015. Tr. at 6, ECF No. 7-2, at 7. After
consideration of the administrative record, the Appeals Council denied Plaintiff’s request for
review on October 3, 2016, thereby making the ALJ’s decision the final decision of the
Commissioner. Tr. at 1-3, ECF No. 7-2, at 2-4.
Plaintiff filed the present Complaint on December 7, 2016, seeking judicial review of the
Commissioner’s final decision to deny her claims for benefits. ECF No. 1. In her Brief in Support
of Judgment on the Pleadings, Plaintiff makes two arguments: (1) “Whether the decision of the
Administrative Law Judge is supported by substantial evidence when the Administrative Law
Judge’s Residual Functional Capacity Evaluation did not address all of Plaintiff’s Limitations,”
and (2) “Whether the decision of the Administrative Law Judge is supported by substantial
evidence when the Administrative Law Judge failed to properly consider the opinion of the
Vocational Expert who testified that Plaintiff is unable to engage in substantial activity[.]” Plf.’s
Br. in Supp. of J. on the Pleadings, at 4, ECF No. 8.

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In the PF&R, however, the Magistrate Judge found he could not conduct a meaningful
review because “the ALJ did not indicate the weight given to Claimant’s treating physicians Dr.
Hansen and Dr. Soleymani.” PF&R, at 14, ECF No. 10. Therefore, the Magistrate Judge
recommends that the Court remanded back to the ALJ. The Magistrate Judge also said “the ALJ
did not identify which State Agency opinions he gave great weight.” Id. Neither of these reasons
were raised by Plaintiff. Defendant filed timely objections to the PF&R on March 12, 2018. ECF
No. 11.
II.

Standards of Review
a. Standard of Review of PF&R

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). In doing so, the Court “may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge.” Id. The Court, however, is not
required to review the factual or legal conclusions of the Magistrate Judge to which no objections
are made. Thomas v. Arn, 474 U.S. 140, 150 (1985).
b. Standard of Review of Commissioner’s Decision
Pursuant to 42 U.S.C. § 405(g), “[t]he court shall have power to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause for a rehearing.” After
reviewing the prescribed materials, if the Court finds that the Commissioner’s decision is
supported by “substantial evidence,” the Court must affirm the decision. Blalock v. Richardson,
483 F.2d 773, 775 (4th Cir. 1972).

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III.

Discussion

Defendant makes two objections to the PF&R. Def.’s Obj. to PF&R, ECF No. 11. First,
Defendant argues that the Magistrate Judge erred in recommending remand based upon the ALJ’s
failure to indicate the weight he gave to Plaintiff’s treating physicians. Id. at 2-6. Second,
Defendant asserts the Magistrate Judge erred in finding the ALJ erred in failing to identify what
State Agency opinions he gave great weight. Upon consideration, the Court agrees with both
objections.
With respect to Defendant’s first objection, Plaintiff was treated by Zachary Hansen, M.D.
at ValleyHealth on September 11, 2013, for vomiting, diarrhea, and allergies, and she sought a
refill of her prescription for Neurontin (Gabapentin) for leg pain. Tr. at 252, ECF No. 7-10, at 3.
Plaintiff reported that she was addicted to heroin and would get horribly sick if she could not get
it. Id. Dr. Hansen refilled her prescription, prescribed Claritin, and referred her to Prestera Center
for evaluation and treatment for opioid dependence. Tr. at 253, ECF No. 7-10, at 4. He also
prescribed Promethazine (Phenergan) in the event she wanted to detox on her own. Id.
On October 12, 2013, Plaintiff was treated by Kambiz Soleymani, M.D., at Prestera Center
for mental health issues and substance abuse. Plaintiff was diagnosed with Opioid Dependence;
Posttraumatic Stress Disorder; and Major Depressive Disorder, Recurrent, Severe with Psychotic
Features. Tr. at 311, ECF No. 7-11, at 44. Dr. Soleymani treated Plaintiff again on October 19,
2013, and prescribed Trazodone for anxiety. Tr. at 323, ECF No. 7-11, at 56. On October 25, 2013,
Plaintiff told Dr. Soleymani she was doing better on Trazodone and was sleeping better on
Seroquel. Tr. at 325, ECF No. 7-11, at 58. Dr. Soleymani also saw Plaintiff again on November
22 and December 6, 2013. Tr. at 329-36, ECF No. 7-12, at 5-12.

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In the PF&R, the Magistrate Judge recommends remand for the failure of the ALJ to
indicate the weight he gave to Drs. Hansen’s and Soleymani’s opinions. Initially, the Court
recognizes that this issue was not raised by Plaintiff as an objection in her Brief in Support of
Judgment on the Pleadings. Additionally, a review of the record reveals that neither physician
offers an opinion as to whether or not Plaintiff meets a Listing under the Social Security
regulations. Instead, the record contains the treatment notes from these physicians. In rendering
the decision, the ALJ discussed these treatment notes and found Plaintiff’s diagnoses of Opioid
Dependence, Posttraumatic Stress Disorder, and Major Depression to be “severe impairments.”
Tr. 12-13, ECF No. 7-2, at 13-14. Under these circumstances, the Court finds remand for failing
to indicate the weight he gave the “opinions” of Drs. Hansen and Soleymani is not warranted.
Although the Magistrate Judge recommends remand due to “the ALJ’s lack of explanation
for the weight afforded to the treating physicians’ opinions [because it] renders the analysis
incomplete and precludes meaningful review[,]” the Magistrate Judge also mentions in the
discussion section that “the ALJ did not identify which State Agency opinions he gave great
weight.” PF&R, at 14, ECF No. 10. On February 20, 2014, a record review was conducted by State
Agency psychologist Jim Capage, Ph.D., who opined Plaintiff was not disabled. Tr. at 70-81, ECF
No. 7-4, at 2-13. On June 12, 2014, State Agency psychological consultant Joseph A. Shaver, Ed.D
reviewed the records and affirmed Dr. Capage’s assessment. Id. at 82-94, ECF No. at 14-26. Dr.
Shaver did no opine as to any additional limitation. Id.
In considering these assessments, the ALJ referenced the “State Agency medical
physicians,” and said he “gives great weight to the opinions.” Tr. at 18, ECF No. 7-2, at 18.
Although the ALJ did not expressly identify the State Agency doctors by name, it is clear he was
referring to Drs. Capage and Shaver because they are the only two State Agency opinions that exist

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in the record, and they reached the same conclusion after assessing the same limitations. Thus, the
Court finds the ALJ’s failure to refer to the State Agency doctors by name does not preclude
meaningful review of the ALJ’s decision. See McGrady v. Astrue, No. 1:11CV10, 2011 WL
4828884, at *20 (N.D.W. Va. Sept. 16, 2011) (stating “[e]ven though the ALJ did not specifically
name [a particular doctor] . . . in this evaluation of the evidence, the above recitation demonstrates
he considered her opinions”).
IV.

Conclusion

Accordingly, for the reasons stated above, the Court REJECTS the Magistrate Judge’s
PF&R and REMANDS this case to the Magistrate Judge for consideration and resolution of
Plaintiff’s claims that the ALJ’s decision is not supported by substantial evidence because (1) the
ALJ’s residual functional capacity evaluation did not address all of her limitations, and (2) the ALJ
failed to properly consider the opinion of the vocational expert who testified that she is unable to
engage in substantial activity.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented parties.

ENTER:

March 29, 2018

ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE

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