Lichlyter v. Astrue
Filing
15
MEMORANDUM OPINION AND ORDER adopting the 13 Proposed Findings and Recommendations by Magistrate Judge, overruling Plaintiff's 14 Objections, dismissing Plaintiff's 2 Complaint, and removing this matter from the Court's docket. Signed by Judge Thomas E. Johnston on 9/25/2012. (cc: attys; any unrepresented party) (jkk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
PARKERSBURG DIVISION
TERESA LYNN LICHLYTER,
Plaintiff,
v.
CIVIL ACTION NO. 6:11-cv-00597
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff Teresa Lynn Lichlyter’s Complaint seeking review of the
decision of the Commissioner of Social Security (“Commissioner”) [Docket 2]. By standing
order, this action was referred to United States Magistrate Mary E. Stanley for submission of
proposed findings and a recommendation (“PF&R”).
The Magistrate Judge filed a PF&R
[Docket 13] on May 22, 2012, recommending that this Court affirm the final decision of the
Commissioner and dismiss this matter from the Court’s docket. Plaintiff filed an objection to the
PF&R on June 7, 2012.
The Court concludes, over Plaintiff’s objection, that the Administrative Law Judge’s
decision not to order a physical consultative examination was supported by substantial evidence.
I.
BACKGROUND
Plaintiff Teresa Lynn Lichlyter filed applications for Supplemental Security Income
(“SSI”) and disability insurance benefits (“DIB”) on December 4, 2007. She alleged disability as
of October 5, 2007, due to herniated back discs, Hepatitis C, depression, anxiety, and pain in her
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hands, neck, shoulders, lower back, hips, knees, legs, and ankles. Her claims were initially
denied, and she requested a hearing before an Administrative Law Judge. The full factual and
procedural history is set forth in the PF&R.
Administrative Law Judge William R. Paxton (“ALJ”) using the five-step sequential
evaluation process set forth in 20 C.F.R. § 404.1520, made the following findings:
1. Plaintiff met the insured status requirements of the Social Security Act through
December 31, 2010;
2. Plaintiff has not engaged in substantial gainful activity since October 5, 2007, the
allege onset date;
3. Plaintiff has the following severe impairments: degenerative disc disease of the
lumbar spine, hepatitis C virus, chronic obstructive pulmonary disease, degenerative
change at the distal interphalangeal joint of the little finger of the right hand, obesity,
major depressive disorder, generalized anxiety disorder, personality disorder, and
attention deficit hyperactivity disorder.
4. Plaintiff does not have an impairment or combination of impairments that meets or
medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1; and
5. Plaintiff has the residual functional capacity to perform sedentary work as defined in
20 C.F.R. 404.1567(a) and 416.967, with certain limitations.
II.
PLAINTIFF’S OBJECTION TO THE PF&R
Plaintiff’s sole objection to the PF&R is the Magistrate Judge’s recommendation that the
Court find that the ALJ did not err in his duty to develop the record by not ordering a physical
consultative examination. (Docket 14 at 1.) Plaintiff avers that the ALJ denied her request for a
physical consultative examination without discussing or providing a rationale for the decision.
Further, she claims that she has impairments that the ALJ did not consider in his decision and
that required development through a consultative examination—namely, right hand degenerative
changes and psychological impairments. (Id. at 2.)
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III.
STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 72(b), the Court must “determine de novo
any part of the magistrate judge’s disposition that has been properly objected to.” The Court is
not required to review, de novo or by 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. Thomas v. Arn, 474 U.S. 140, 150 (1985).
The Court has a narrow role in reviewing claims brought under the Social Security Act.
Its review is limited to determining whether the contested factual findings of the Commissioner
are supported by substantial evidence and were reached through application of the correct legal
standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). “Substantial evidence is
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (citation omitted); see Laws v. Celebrezze, 368
F.2d 640, 642 (4th Cir. 1966) (finding that substantial evidence “consists of more than a mere
scintilla of evidence but may be somewhat less than a preponderance.”). If substantial evidence
exists, the Commissioner’s final decision must be affirmed. Hays v. Sullivan, 907 F.2d 1453,
1456 (4th Cir. 1990).
IV.
DISCUSSION
Plaintiff objects to the PF&R on the basis that the ALJ failed to properly develop the
administrative record by failing to order a consultative examination. (Docket 14 at 1.) More
particularly, she claims that the ALJ failed to develop evidence of and to consider her right hand
degenerative changes and psychological impairments. (Id. at 2.)
An ALJ has a duty to develop the record. 20 C.F.R. § 416.912(d). An ALJ’s duty to
assist in developing the record “is triggered only when there is ambiguous evidence or when the
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record is inadequate to allow for proper evaluation of the evidence.” Mayes v. Massanari, 276
F.3d 453, 459-60 (9th Cir. 2001); Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986) (citation
omitted). An ALJ may order a consultative examination when the evidence on the record is
insufficient for the ALJ to determine whether the claimant is disabled. 20 C.F.R. §§ 416.917,
416.919a(b).
A reviewing court “gives deference to an ALJ’s decision about how much
evidence is sufficient to develop the record fully and what measures . . . are needed in order to
accomplish that goal.” Poyck v. Astrue, 414 Fed. Appx. 859, 861 (7th Cir. 2011) (citation
omitted).
Furthermore, the ALJ’s duty to develop the record does not excuse the claimant from
proving her disability. 20 C.F.R. § 404.1512(a) (2010); see Bowen v. Yuckert, 482 U.S. 137, 146
n.5 (1987); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981) (“A claimant for disability benefits
bears the burden of proving a disability.”); Seacrist v. Weinberger, 538 F.2d 1054, 1057 (4th Cir.
1976). Remand for failure to develop the record may also be unwarranted where the claimant
cannot show that she was prejudiced by the failure. Cary v. Apfel, 230 F.3d 131, 142 (5th Cir.
2000). “To establish prejudice, a claimant must demonstrate that . . . she could and would have
adduced evidence that might have altered the result.” Id.
Contrary to Plaintiff’s assertion, she was not entitled to a consultative examination
merely because her impairments were varied and severe. (Docket 14 at 1.) At issue is whether
the record lacked sufficient evidence for the ALJ to make an informed decision. Because in her
objection to the PF&R Plaintiff specifically argues that a consultative examination was required
to develop evidence of her right hand degenerative changes and psychological impairments, the
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Court limits its review to whether substantial evidence existed to support the ALJ’s decision as
to these impairments.1
The ALJ had sufficient evidence regarding the functional impact of the degenerative
changes in Plaintiff’s right hand on her ability to perform basic work activities. The ALJ
determined that the degenerative change in Plaintiff’s right hand was a severe impairment, but
that it did not meet one of the listed impairments in the Code of Federal Regulations. (Tr. at 16.)
Plaintiff bears the burden of proof to establish that her impairment rises to the level recognized in
federal regulations.
She has not met that burden.
Indeed, during her opening statement,
Plaintiff’s counsel referenced a combination of Plaintiff’s impairments—including back pain,
Hepatitis C, and psychological impairments—that prevented Plaintiff from being able to
maintain substantial gainful activity. (Tr. at 28-29.) She did not once refer to degenerative
changes in Plaintiff’s right hand as such an impairment. (Id.) Plaintiff testified at the hearing
that her hands were deformed and swollen, that her fingers were curved, and that she could not
open a bottle or use a can-opener. (Tr. at 40.) She did not and does not allege, however, that any
degenerative changes in her hand have resulted in a loss of function as defined by the
regulations; indeed, medical evidence in the record contradicts any such assertion.
Plaintiff’s treating physician, Dr. Wolfe, performed a medical evaluation approximately
four months after Plaintiff filed her application for benefits.
In Dr. Wolfe’s evaluation
completed March 14, 2008, he noted that Plaintiff’s fine motor ability was normal, that he did
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Claimant’s assertion that these impairments were not considered in the ALJ’s decision is
unfounded. The ALJ did take into consideration her right hand degenerative changes and
psychological impairments in making his decision. He found both these impairments were
severe. (Tr. at 15.) He concluded that these impairments, however, considered in connection
with Claimant’s other impairments, did not meet or equal the severity of any listed impairment.
Id. (citing 20 C.F.R. pt. 404, subpt. P, app.1).
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not find any joint deformities, that the range of motion in her fingers and wrist was normal, and
that Plaintiff was able to make a fist, pick up coins, button clothing, and tie a shoestring. (Tr. at
547.) Dr. Wolfe’s medical source statement opined that Plaintiff was able to perform fine and
gross movements effectively. (Id.) Neither these medical records nor Plaintiff’s testimony
suggest that any impairment Plaintiff suffered in her right hand was severe enough to meet one
of the listed impairments. With sufficient evidence to determine the existence of a disability, the
ALJ had the discretion not to order a consultative examination. 20 C.F.R. §§ 404.1512, 416.912.
In addition to the right hand degenerative changes, Plaintiff avers that her psychological
impairments needed to be further developed through a consultative examination. (Docket 14 at
2.) The Court does not share this view of the record. The record is replete with evaluations of
Plaintiff’s psychological impairments.
Plaintiff underwent a consultative psychological
evaluation on June 23, 2008, and her counsel submitted an additional psychological assessment
performed on November 21, 2009. (Tr. at 592-95, 670-81.) The ALJ questioned Plaintiff at the
hearing concerning the severity of her depression and anxiety. (Tr. at 37-38.) The ALJ’s
decision that Plaintiff’s mental health impairments, though severe, did not rise to the level of
disability recognized by federal regulations was supported by substantial evidence.
Finally, Plaintiff has failed to identify how her claim was prejudiced by the denial of a
consultative examination. Plaintiff has not argued that her conditions have worsened and has not
identified new impairments that the ALJ failed to consider. The ALJ’s duty to develop the
record does not trump Plaintiff’s obligation to make out a prima facie case for disability. Where
substantial evidence supports the ALJ’s decision not to order a consultative examination, as it
does here, Plaintiff bore the risk of non-persuasion. Seacrist, 538 F.2d at 1057.
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V.
CONCLUSION
Upon review of the administrative record and consideration of Plaintiff’s arguments, the
Court finds the Commissioner’s decision is supported by substantial evidence and in accord with
applicable law. For these reasons, the Court ADOPTS the PF&R [Docket 13], OVERRULES
Plaintiff’s objection [Docket 14], DISMISSES Plaintiff’s complaint [Docket 2], and
REMOVES this matter from the Court’s docket. A separate Judgment Order will be filed this
day implementing the Court’s judgment.
IT IS SO ORDERED.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented party.
ENTER:
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September 25, 2012
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