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Hawkins v. Berryhill

United States District Court, S.D. West Virginia, Charleston Division

March 30, 2018

NANCY A. BERRYHILL, Commissioner of Social Security, Defendant.



         This action was referred to United States Magistrate Judge Dwane L. Tinsley for submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636. On March 2, 2018, Judge Tinsley submitted his Proposed Findings and Recommendations [ECF No. 15] (PF&R"), recommending that the court grant the plaintiffs request for judgment on the pleadings [ECF No. 10], deny the defendant's request for judgment on the pleadings as articulated in her brief in support of the Commissioner's decision [ECF No. 13], reverse the final decision of the Commissioner, and remand this case for further proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). The Commissioner filed an Objection [ECF No. 16] to the PF&R. The claimant filed a Response [ECF No. 17].

         For the reasons provided herein, the court SUSTAINS the Commissioner's objections [ECF No. 16], DECLINES TO ADOPT the PF&R [ECF No. 15], DENIES the plaintiffs motion for judgment on the pleadings [ECF No. 10], GRANTS the defendant's motion for judgment on the pleadings as articulated in her brief in support of the Commissioner's decision [ECF No. 13], AFFIRMS the decision of the Commissioner, and DISMISSES this matter from the court's docket.

         I. Background

         a. Procedural History

         The claimant, Laura Ann Hawkins, filed an application for disability insurance benefits on May 2, 2013, alleging disability beginning February 13, 2012. The application was denied initially on August 13, 2013, and upon reconsideration on October 28, 2013.

         Pursuant to the claimant's request, a video hearing was held on February 11, 2015. Administrative Law Judge John T. Molleur (the "ALJ") presided. On March 3, 2015, the ALJ issued his decision denying the claimant's application. He found that the claimant satisfied step one of the sequential evaluation because she has not engaged in substantial gainful activity since the alleged onset date of February 13, 2012, and she meets the insured status requirements of the Social Security Act through June 30, 2017. Tr. Proceedings 13 [ECF No. 9-2] ("Tr."). As to the second step, the ALJ found that the claimant suffers from the following severe impairments: degenerative disc disease of the lumbar and cervical spine, bilateral hip bursitis, diabetes, migraines, and obesity. Id. As to the third step, the ALJ concluded that the claimant did not have an impairment or a combination of impairments that met or medically equaled the level of severity of any listing in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 16. The ALJ next found that the claimant had a residual functional capacity to perform light work with certain listed limitations. Tr. 17. At step five, and on the basis of the testimony of a vocational expert, the ALJ determined that the claimant could perform jobs that exist in significant numbers in the national economy, such as a cashier, fast food worker, and customer service cashier I/head cashier. Tr. 24-25. On this basis, the claimant's application was denied.

         The ALJ's decision became the final decision of the Commissioner on July 28, 2016, when the Appeals Council denied the claimant's request for review. Tr. 1. The claimant filed this action seeking judicial review of the Commissioner's decision on September 26, 2016. Compl. [ECF No. 1].

         II. Standards of Review

         a. Review of the PF&R

         A district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). This court is not, however, 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. Thomas v. Arn, 474 U.S. 140, 150 (1985).

         b. Review of the ALJ's Findings and Decision

         The Social Security Act states that "[t]he 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). The Supreme Court has defined substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (l97l) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). "It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). "In reviewing for substantial evidence, [the court should] not undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] own judgment for that of the [Commissioner]." Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (citing Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)). Rather, the court must adopt the Commissioner's findings if there is evidence in support of such findings "to justify a refusal to direct a verdict were the case before a jury." Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972). "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)." Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987). Thus, even if the court would have reached a different decision, it must nonetheless defer to the conclusions of the ALJ if such conclusions are bolstered by substantial evidence and were reached through a correct application of relevant law. See Coffinan v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).

         A claimant "bears the burden of proving that he is disabled within the meaning of the Social Security Act." English v. Shalala, 10 F.3d 1080, 1082 (4th Cir. 1993) (citing 42 U.S.C. § 423(d)(5); Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981)). Disability is 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).

         In order to determine whether an individual is disabled, the Commissioner uses a five-step sequential evaluation process. See 2Q C.F.R. §§ 404.1520(a).

[T]he 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). The claimant bears the burden of proof at steps one through four, and the Commissioner bears the burden at step five. If an individual is found "not disabled" at any step, further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a).

         III. Discussion

         a. Review of PF&R

         The Magistrate Judge recommended remand on the basis that the ALJ did not specify the frequency or intensity required under Listing 11.03, and that he did not identify why he determined that the claimant's migraines did not meet or equal the Listing. See PF&R 6-7 [ECF No. 15]. The Commissioner argues that (1) to the extent the Magistrate Judge's recommendation is based on the ALJ's failure to state verbatim the requirements of Listing 11.03, he was not required to do so! and (2) to the extent the Magistrate Judge's recommendation is based on the ALJ's failure to set forth a detailed reasoning in the step-three section of his decision, the ALJ set forth substantial evidence supporting his step-three determination throughout the entirety of his decision. See Def's Obj. R. & R. 2, 5 [ECF No. 16]. The court agrees.

         Under the third step of the sequential evaluation, the ALJ must determine whether the claimant's impairment meets or equals any of the impairments listed in Appendix 1 to Subpart P of the Administrative Regulations. 20 C.F.R. §§ 404.1520(d)). The listings set out in the appendix "are descriptions of various physical and mental illnesses and abnormalities, most of which are categorized by the body system they affect. Each impairment is defined in terms of several specific medical signs, symptoms, or laboratory test results. Sullivan v. Zebley, 493 U.S. 521, 529-30 (1990).

         ALJs are not required to explicitly identify and discuss every possible listing. Ezzell v. Berryhill, 688 Fed.Appx. 199, 200 (4th Cir. 2017). However, "[w]hen there is 'ample evidence in the record to support a determination' that the claimant's impairment meets or equals one of the listed impairments, the ALJ must identify 'the relevant listed impairments' and compare 'each of the listed criteria to the evidence of [the claimant's] symptoms.'" Id. (citing Cook v. Heckler, 783 F.2d 1168, 1172-73 (4th Cir. 1986)).

         "An ALJ's explanation for their step-three determination is insufficient if they state only that they considered the listing of impairments and 'offer [ ] nothing to reveal why they made their determination." McDaniel v. Colvin, No. 2:14-cv28l57, 2016 WL 1271509, at *4 (S.D. W.Va. Mar. 31, 2016) (quoting Fox v. Colvin, 632 Fed.Appx. 750, 755 (4th Cir. 2015)). The "insufficient legal analysis makes it impossible for a reviewing court to evaluate whether substantial evidence supports the ALJ's findings." Johnson v. Berryhill, No. 2:i7-cv01608, 2018 WL 1096463, at *10 (S.D. W.Va. Feb. 1, 2018), adopted by 2018 WL 1095581 (citations omitted).

         "However, if the ALJ's opinion read as a whole provides substantial evidence to support the ALJ's decision at step three, such evidence may provide a basis for upholding the ALJ's determination." McDaniel, 2016 WL 1271509, at *4 (citations omitted); see Six v. Colvin, No. 3:i5-cvl4377, 2016 WL 7040850, at *2-3 (S.D. W.Va. Dec. 1, 2016). ALJs only need to "review medical evidence once in [their] opinion[s]." McDaniel, 2016 WL 1271509, at *4 (quoting McCartney v. Apfel, 28 Fed.Appx. 277, 279 (4th Cir. 2002)). Thus, "[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." Id. (citations omitted).

         In the step three section of his decision in this case, the ALJ determined:

The claimant's migraines are most closely evaluated under Section 11.03 of the Listings. However, the claimant's migraines do not meet or equal the criteria of the listing because there is no evidence they occur with the frequency or intensity required by the ...

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