Piziak v. Colvin
MEMORANDUM OPINION AND ORDER: That Plaintiff's 16 Objections to Proposed Findings and Recommendation be OVERRULED, and that the Magistrate Judge's 15 Proposed Findings and Recommendation be ADOPTED, that Plaintiff's 10 Memoran dum in Support of Judgment on the Pleadings be DENIED, that the Defendant's 13 Memorandum in Support of Judgment on the Pleadings be GRANTED, that the final decision of the Commissioner be AFFIRMED, and that tis matter be DISMISSED from the Court's docket. Signed by Judge Irene C. Berger on 8/8/2017. (cc: USMJ Aboulhosn; attys; any unrepresented party) (msa)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
PAMELA KAY PIZIAK,
CIVIL ACTION NO. 5:16-cv-08843
NANCY A. BERRYHILL1,
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND ORDER
This is an action seeking review of the final decision of the Commissioner of Social
Security (“Defendant”) denying Plaintiff’s application for Disability Insurance Benefits (DIB)
under Title II of the Social Security Act (SSA), 42 U.S.C. §§ 401-433. By Standing Order
(Document 3) entered on September 15, 2016, this matter was referred to the Honorable Omar J.
Aboulhosn, United States Magistrate Judge, for findings of fact and recommendations for
disposition. On March 22, 2017, Magistrate Judge Aboulhosn submitted his Proposed Findings
and Recommendation (PF&R) (Document 15), recommending that the Court deny the Plaintiff’s
request for judgment on the pleadings, grant the Defendant’s request to affirm the decision of the
Commissioner, affirm the final decision of the Commissioner, and dismiss this action.
The Court has reviewed the Plaintiff’s Objections to Proposed Findings and
Recommendation (Document 16), as well as the original briefing, the administrative record
At the time this civil action was filed, Carolyn W. Colvin was serving as the Acting Commissioner of Social Security.
(Document 8 and exhibits), and the PF&R. For the reasons stated herein, the Court finds that the
objections should be overruled.
The Plaintiff, Pamela Piziak, filed an application for DIB on October 22, 2013. She
claimed that she was disabled as a result of “hearing loss, knee replacement, bi-polar, fibromyalgia,
arthritis [left knee], [and] sleep problems.” (PF&R at 2, quoting from Tr. at 145-46, 158.) Her
claim was denied at each successive stage, and she timely sought judicial review.
Disability under the SSA is defined as the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The Social Security Administration
utilizes a five-step sequential inquiry to determine eligibility for social security disability benefits.
If a claimant is determined not to be disabled at one step, the evaluation does not proceed to the
next step. See Johnson v. Barnhart, 434 F.3d 650, 653-54 (4th Cir. 2005)). The Fourth Circuit
has summarized the five-step process as follows:
the ALJ asks at step one whether the claimant has been working; at
step two, whether the claimant's medical impairments meet the
regulations' severity and duration requirements; at step three,
whether the medical impairments meet or equal an impairment listed
in the regulations; at step four, whether the claimant can perform her
past work given the limitations caused by her medical impairments;
and at step five, whether the claimant can perform other work.
Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015). “If the first three steps do not lead to a
conclusive determination, the ALJ then assesses the claimant's residual functional capacity, which
is “the most” the claimant “can still do despite” physical and mental limitations that affect her
ability to work.” (citing 20 C.F.R. § 416.945(a)(1)). Id. at 635. If the claimant is able to
perform his or her past work, the ALJ can find the claimant not to be disabled. Id. If the claimant
is not able to perform his or her past work, the ALJ proceeds to step five, where “the burden shifts
to the Commissioner to prove, by a preponderance of the evidence, that the claimant can perform
other work that ‘exists in significant numbers in the national economy,’ considering the claimant's
residual functional capacity, age, education, and work experience.” Id. (citing 20 C.F.R. §§
416.920(a)(4)(v); 416.960(c)(2); 416.1429).
STANDARD OF REVIEW
The Federal Magistrates Act requires a district court to conduct a de novo review upon the
record of any portion of the proposed findings and recommendations to which written objections
have been made. 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). Conversely, a district
court is not required to review, under a de novo or any other standard, the factual or legal
conclusions of the magistrate judge as to those portions of the findings or recommendation to
which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 149-50 (1985); see also
Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983) (holding that districts courts may adopt
proposed findings and recommendations without explanation in the absence of objections). A
district court judge may “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1) (2006). A district court's
authority to choose among these options is independent of the statutory duty to afford review to
those portions to which objections are addressed. See Camby, 718 F.2d at 199-200 (“If no
objections were made, for example, it could hardly be argued that the judge must accept the
[magistrate judge's] report if it contained an error of law apparent on its face.”). As such, it is
wholly within the district court's discretion to accept, reject, or modify a magistrate judge's
proposal irrespective of any objections by the parties. See United States v. Raddatz, 447 U.S. 667,
676 (1980). Running parallel with district courts' discretion under the Federal Magistrates Act is
the responsibility to ensure the just disposition of matters referred to magistrate judges. See
Mathews v. Weber, 423 U.S. 261, 271 (1976); see also Raddatz, 447 U.S. at 683.
Section 405(g) of the SSA provides, “the findings of the Commissioner of Social Security
as to any fact, if supported by substantial evidence, shall be conclusive . . ..” 42 U.S.C. § 405(g).
“When examining an SSA disability determination, a reviewing court is required to uphold the
determination when an ALJ has applied correct legal standards and the ALJ's factual findings are
supported by substantial evidence.” Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th
Cir. 2012). “Substantial evidence has been defined innumerable times as more than a scintilla,
but less than a preponderance.” Thomas v. Celebrezze, 331 F.2d 541, 543 (4th Cir. 1964) (citing
Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197 (1938)). In making its determination, the
Court must look to “the whole record to assure that there is a sound foundation for the Secretary's
findings, and that his conclusion is rational.” Vitek v. Finch, 438 F.2d 1157, 1157-58 (4th Cir.
1971). When the Commissioner’s decision clearly disregards the overwhelming weight of the
evidence, the Court may modify or reverse the decision. Id.
The Magistrate Judge set forth the Plaintiff’s background and medical conditions, and the
Court incorporates those findings by reference herein. In summary, Ms. Piziak taught middle
school for about thirty-five years before retiring at around age sixty (60) at the onset of her alleged
disability. She has a Masters’ degree in education. Ms. Piziak cited her stress levels, anxiety,
and panic attacks as reasons for leaving her job. She underwent a left knee replacement in 2013
and a right knee replacement in 2014. She was diagnosed with fibromyalgia, but reported that it
was in remission. She also had hypothyroidism, hypertension, moderate obstructive sleep apnea,
and dry eye syndrome. The ALJ found that Ms. Piziak’s degenerative joint disease and hearing
loss constituted severe impairments, and that her mental health impairments and other chronic
ailments were non-severe and caused little or no limitation in her functioning. Ms. Piziak’s appeal
focuses primarily on her hearing loss.
The medical expert, Dr. Judith Brendemuehl, testified that Ms. Piziak’s hearing loss was
not at a listing level, but that she would need a “fairly quiet environment.” (PF&R at 13.) Ms.
Piziak testified that her hearing bothered her in the classroom because students would laugh when
she needed them to repeat themselves. She explained that her hearing aid batteries lasted only
three to four hours, which doctors said was abnormal, but she did not complain about it because it
was not a problem after she quit working. A doctor who performed a consultative examination
“noted that [Ms. Piziak] wore bilateral hearing aids and responded to normal conversational
volume.” (Tr. at 19.) The ALJ found that Ms. Piziak’s hearing impairment did not meet the
severity of the listing for a hearing impairment at Step Three, but found that she could “never have
exposure to a loud noisy environment.” (Tr. at 16.) The vocational expert described Ms.
Piziak’s prior employment as a teacher as “code three, meaning just a regular – it’s not a noisy
environment, three, office type environment.” (Tr. at 44.) The ALJ concluded at Step Four of
the analysis that Ms. Piziak could return to her past relevant work as a teacher, and therefore was
not disabled under §§ 216(i) and 223(d) of the Social Security Act.
Ms. Piziak filed a request for review with the Appeals Council, and submitted a Medical
Source Statement from Dr. Sidney Lerfald, her treating psychiatrist, that she argued constituted
new and material evidence rendering the ALJ’s findings contrary to the weight of the evidence.
(Tr. at 227.)2 Dr. Lerfald indicated that Ms. Piziak had moderate difficulties dealing with the
public and with work stresses, citing her bilateral hearing loss. (Tr. at 470.) He also noted slight
difficulty with behaving in an emotionally stable manner and moderate difficulty with relating
predictably in social situations and completing a work day and week at a consistent pace, citing
her anxiety, hearing loss, and chronic lower back pain. (Tr. at 471.) The Appeals Council
nonetheless denied Ms. Piziak’s claim.
The Magistrate Judge found that the Commissioner’s decision was supported by substantial
evidence. He further found that it was for the ALJ to interpret the testimony that Ms. Piziak
required a “fairly quiet” environment, together with the vocational expert’s description of a
classroom noise level as “not a noisy environment.” In addition, the Magistrate Judge found that
Dr. Lerfald’s medical source statement did not contain new evidence regarding her hearing loss
and its effects, and it would have been entitled to little weight, given that he did not treat her
hearing loss. He observed that the ALJ considered Dr. Lerfald’s records and treatment notes, and
the new evidence was limited to the check-box medical source statement form. Thus, he found
that the new evidence did not render the ALJ’s findings “contrary to the weight of the evidence in
the record as a whole.” (PF&R at 25, citing Snider v. Colvin, 2013 WL 4880158 (S.D.W.Va.
Sept. 12, 2013.)
2 Dr. Lerfald’s medical source statement is a check-box form. He included brief phrases indicating, for example,
that Ms. Piziak’s limitations in social settings and dealing with the public were related to her hearing loss, but no
further analysis or explanation. Pursuant to the regulations, opinions with thorough explanations are entitled to more
weight than those with little explanation. 20 C.F.R. § 404.1527(c)(3).
Ms. Piziak objects. She argues that the ALJ did not sufficiently reconcile and explain “her
RFC limitations for Piziak’s severe hearing loss, which did not directly align with the hearing
limitations provided by Dr. Brendemuehl.…or by the State agency medical consultants.” (Obj.
at 4.) She contends that the ALJ was required to either include the limitations stated by the
medical expert or explain her reasons for rejecting Dr. Brendemuel’s opinion, and that remand is
required to permit the ALJ to properly consider the evidence and explain her findings. In addition,
she argues that the Appeals Council accepted Dr. Lerfald’s medical source statement as new
evidence, leaving this Court to consider only whether introduction of that evidence into the record
renders the ALJ’s decision unsupported by substantial evidence. Ms. Piziak argues that the
evidence “clarified how Piziak’s hearing loss affected her ability to perform the basic mental
demands of work and to return to her past relevant work,” as opposed to being about “the severity
of Piziak’s hearing loss.” (Obj. at 6-7.) She suggests that “the new evidence from Dr. Lerfald is
valuable to determining whether Piziak was limited to unskilled work and unable to return to her
past relevant work as a teacher.” (Id. at 7.)
The Court finds that the Commissioner’s determination is supported by substantial
evidence, and Dr. Lerfald’s new evidence does not shift the weight of the evidence such that
remand would be required. There is no dispute as to steps one through three of the requisite
analysis, and so the Court will begin with step four, in which the ALJ considered whether Ms.
Piziak could perform her past work given her limitations. Although she did not use the same
words, the ALJ incorporated Dr. Brendemuehl’s finding that Ms. Piziak required a “fairly quiet”
environment by concluding that she could not be exposed to a loud, noisy environment. Other
experts similarly testified that Ms. Piziak had occasional hearing limitations, but could respond to
normal conversation and could perform her past work.3 It was reasonable for the ALJ to find that
Ms. Piziak could not be exposed to a loud, noisy environment. Even if the ALJ had incorporated
Dr. Brendemuehl’s exact language stating that Ms. Piziak required a “fairly quiet” environment
into her RFC, there is no apparent conflict between a “fairly quiet” workplace and a “not noisy,”
“normal,” and “office type” workplace, as the vocational expert described the classroom
Substantial evidence supports the Commissioner’s denial even giving consideration to the
new evidence submitted by Dr. Lerfald. See Meyer v. Astrue, 662 F.3d 700, 706–07 (4th Cir.
2011) (explaining that remand for an ALJ to review new evidence from a treating physician
admitted by the Appeals Council is necessary if it is not controverted by other evidence, but that
affirmance of the Commissioner’s denial remains appropriate when the decision is supported by
substantial evidence.) As noted by the Magistrate Judge, Dr. Lerfald’s more in depth treatment
records were already part of the record, and his newly submitted evidence consists of only a checkbox form indicating moderate and slight problems with certain functions, including working with
the public and handling work stress. Ms. Piziak suggests that Dr. Lerfald’s source statement
supports a finding that her loss of hearing leaves her unable to perform skilled work. It is unclear
how hearing loss, not itself a mental condition, would reduce a claimant’s skill level, particularly
in light of Ms. Piziak’s ability to participate in normal conversations with the use of hearing aids.
3 Ms. Piziak argues that medical experts’ opinions regarding whether she could perform her past work are not entitled
to any consideration. Although medical experts are not vocational experts, most people are familiar with a classroom
environment, and could reasonably give a medical opinion regarding Ms. Piziak’s ability to handle the noise level in
a typical classroom, just as any patient could expect her doctor to give advice regarding her ability to perform ordinary
tasks. The ALJ did not appear to give significant weight to the contested opinions, however, and her opinion is
supported by substantial evidence regardless of any consideration given to the statements by the medical experts that
she could continue teaching.
The ALJ carefully reviewed the contemporaneous treatment notes from Dr. Lerfald, Ms.
Piziak’s own statements, and a Psychiatric Review Technique Form completed by a state agency
consultant. She placed emphasis on the contemporaneous treatment notes, which recounted
mildly deficient concentration, but generally stable moods and energy levels, with the ability to
travel, play scrabble, visit friends, manage household finances, and complete light housework.
Any stress or anxiety attributable to Ms. Piziak’s hearing loss would have been incorporated in the
mental health records reviewed by the ALJ. Ultimately, the ALJ concluded that Ms. Piziak’s
mental health problems were well managed with treatment, and caused only mild deficiencies in
certain areas. Dr. Lerfald’s new source statement indicating moderate deficiency in interacting
with others is contradicted by the treatment notes recounting regular social interaction and Ms.
Piziak’s testimony that she had no difficulty in interactions with authority figures. Clearly, the
ALJ’s decision is supported by substantial evidence, and is adequately explained, even in light of
the “new and material evidence” admitted by the Appeals Council. Therefore, the Court finds
that Ms. Piziak’s objections should be overruled, and the PF&R should be adopted.
Wherefore, after thorough review and careful consideration, the Court ORDERS that the
Plaintiff’s Objections to Proposed Findings and Recommendation (Document 16) be
OVERRULED, and that the Magistrate Judge’s Proposed Findings and Recommendation
(Document 15) be ADOPTED. The Court further ORDERS that the Plaintiff’s Memorandum in
Support of Judgment on the Pleadings (Document 10) be DENIED, that the Defendant’s
Memorandum in Support of Judgment on the Pleadings (Document 13) be GRANTED, that the
final decision of the Commissioner be AFFIRMED, and that this matter be DISMISSED from
the Court’s docket.
The Court DIRECTS the Clerk to send a certified copy of this Order to Magistrate Judge
Aboulhosn, to counsel of record, and to any unrepresented party.
August 8, 2017
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