United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER ADOPTING AND AFFIRMING
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, GRANTING
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, DENYING
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND OVERRULING
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
plaintiff, Ryan Lee Williams, received supplemental security
income (“SSI”) as a child because he was
disabled. Upon attaining the age of 18 years old, the Social
Security Administration (“SSA”) was required to
redetermine the plaintiff's eligibility for SSI
disability benefits pursuant to 20 C.F.R. § 416.987. The
SSA determined that the plaintiff is not disabled under the
rules set forth for redeterminations for individuals who
attain age 18. The plaintiff challenged this finding, and the
matter went before an Administrative Law Judge
(“ALJ”) who also determined that the plaintiff
was not eligible for benefits under 20 C.F.R. § 416.987.
The plaintiff filed an appeal of the decision to the appeals
council. The appeals council denied the plaintiff's
request for review and thus the decision became the final
decision of the Commissioner of Social Security.
evaluate the plaintiff's case, the ALJ used the five-step
sequential evaluation process for evaluating disability of
adults as set forth in 20 C.F.R. § 416.920. However, the
ALJ noted that the first step, considering substantial
gainful activity (20 C.F.R. § 920(b)), is not used for
disability redeterminations for individuals who attain age
18. Using the remaining steps in the process, the ALJ made
the following findings: (1) during the period at issue, the
plaintiff has evidenced “the following severe
impairments: insulin dependent diabetes mellitus; expressive
and receptive language delays, borderline intellectual
functioning, adjustment disorder, and auditory processing
disorder;” (2) during the period at issue, none of the
plaintiff's impairments, whether considered individually
or in combination, “meet or medically equal the
severity of one of the listed impairments in 20 [C.F.R.] Part
404, Subpart P, Appendix 1;” (3) during the period at
issue, the plaintiff “has had the residual functional
capacity to perform light work as defined in 20 [C.F.R.]
416.967(b), ” including several limitations; and (4)
the plaintiff is capable of performing “jobs that exist
in significant numbers in the national economy.” ECF
No. 11 at 23-33. Therefore, the ALJ found that the plaintiff
is not disabled.
plaintiff then filed a request for judicial review of the
ALJ's decision in this Court. Pursuant to 28 U.S.C.
§ 636(b)(1)(B) and Local Rule of Civil Procedure
9.02(a), this case was referred to United States Magistrate
Judge Robert W. Trumble. Both parties filed motions for
summary judgment. After consideration of those motions, the
magistrate judge entered a report and recommendation. In that
recommendation, the magistrate judge recommended that the
plaintiff's motion for summary judgment (ECF No. 14) be
denied, the defendant's motion for summary judgment (ECF
No. 15) be granted, the decision of the Commissioner be
affirmed, and this case be dismissed with prejudice. The
plaintiff filed timely objections to the report and
recommendation. The defendant then filed a response to the
the plaintiff timely filed objections to the report and
recommendation, the magistrate judge's recommendation
will be reviewed de novo as to those findings to
which objections were made. 28 U.S.C. § 636(b)(1)(C). As
to those findings to which objections were not made, the
findings and recommendations will be upheld unless they are
“clearly erroneous or contrary to law.” 28 U.S.C.
United States Court of Appeals for the Fourth Circuit has
held, “Under the Social Security Act, [a reviewing
court] must uphold the factual findings of the Secretary 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).
“Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Id. A reviewing court “does
not reweigh evidence or make credibility determinations in
evaluating whether a decision is supported by substantial
evidence; ‘[w]here conflicting evidence allows
reasonable minds to differ,' we defer to the
Commissioner's decision.” Thompson v.
Astrue, 442 Fed.Appx. 804, 805 (4th Cir. 2011) (quoting
Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir.
plaintiff argues in his motion for summary judgment that the
ALJ incorrectly weighed the testimony of various witnesses.
The plaintiff contends that the ALJ should not have relied on
Dr. Gross, Dr. Capage, and Dr. Shaver, and that the ALJ
should have given more weight to Mr. McCullough and Dr.
Soule. The plaintiff raises several arguments in support of
these claims, including: (1) that Dr. Gross was not board
certified; (2) that several of the testifying doctors did not
review the entire record; (3) that Dr. Gross was unreliable
because he was paid to testify; (4) that Dr. Shaver's and
Dr. Capage's opinions should be given less weight because
the doctors only “signed off” on forms that
non-experts filled out (citing Murphy v. Comm'r of
Soc. Sec. Admin., No. 5:16CV27, 2017 WL 959580, at *1
(N.D. W.Va. Mar. 13, 2017)); (5) that the testimonies of Mr.
McCullough and Dr. Soule were supported by evidence in the
record; (6) that the ALJ erred in giving “not great
weight” rather than “no weight” to the
opinions of Dr. Franyutti and Dr. Lateef; and (7) that Dr.
Capage did not evaluate “Mr. Williams's 12.10-type
impairments.” ECF No. 14-1 at 5-9, 11, ECF No. 17 at
4-6. Further, the plaintiff asks this Court to remand the
case to a different ALJ because “the current ALJ abused
her discretion by calling a medical expert.” ECF No.
14-1 at 10. The plaintiff contends that the ALJ
“show[s] no desire to fairly adjudicate this
claim” because the plaintiff contends the ALJ
improperly applied the standards for evaluating opinion
evidence. ECF No. 14-1 at 11.
defendant's motion for summary judgment asks this Court
to affirm the decision of the ALJ. In the defendant's
memorandum in support, the defendant addresses many of the
points the plaintiff raised. First, the defendant points out
that although board certification can give additional weight
to a witnesses testimony, the ALJ can consider the testimony
of witnesses who are not certified. ECF No. 16 at 5 (citing
Garcia v. Colvin, No. CV 12-06542-MAN, 2014 WL
358396, at *3 (C.D. Cal. Jan 30, 2014)). Second, the
defendant argues that it is not necessary for a medical
expert to review the entire record. Third, the defendant
argues that Dr. Gross's fee for testifying does not
automatically make him unreliable, since the Social Security
hearing system is not designed to be an adversarial system.
Fourth, the defendant disputes the plaintiff's
characterization of Murphy, arguing that the issue
in Murphy involved the “sign off” by a
doctor who was not involved in treating the claimant. Fifth,
the defendant points to conflicting evidence to show that the
ALJ relied on more than a mere scintilla to reach her
evaluation of the opinions of Mr. McCullough and Dr. Soule.
ECF No. 16 at 12-13. Finally, the defendant argues that
remand to a new ALJ is not warranted because the plaintiff
has not cited any supporting authority to show that either a
new ALJ is appropriate or that calling a medical expert
constitutes an abuse of discretion.
report and recommendation, the magistrate judge noted that in
a judicial review of the ALJ's decision, the appropriate
standard of review is to determine whether “the ALJ
applied the proper legal standards and whether the ALJ's
factual findings are supported by substantial
evidence.” ECF No. 21 at 5 (citing Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990)). The
magistrate judge found that the ALJ properly relied on the
opinions of Dr. Gross, Dr. Capage, and Dr. Shaver. As to Dr.
Gross, the magistrate judge first noted that it is unclear
why the plaintiff argues that the ALJ made an error by
relying on Dr. Gross's opinion of the plaintiff's
condition. The magistrate judge found that, while Dr. Gross
concluded that the plaintiff's impairments were not
severe, the ALJ concluded the plaintiff suffered from several
severe impairments. Because the ALJ's conclusion gave the
plaintiff the benefit of the doubt, the magistrate judge
concluded that if this was an error, it did not prejudice the
plaintiff. Second, the magistrate judge found that Dr. Gross
did not need to be board certified for the ALJ to give his
opinion weight. Third, the magistrate judge found that Dr.
Gross was not required to review the entire record before
rendering an opinion. Fourth, the magistrate judge found that
the ALJ did not need to find Dr. Gross unreliable because he
was paid to testify; medical experts are not automatically
deemed biased because they are compensated. On this point,
the magistrate judge noted that plaintiff's counsel had
brought this same meritless argument in a previous case, and
reminded plaintiff's counsel that raising meritless
arguments could potentially result in sanctions under Federal
Rule of Civil Procedure 11.
Dr. Capage, the magistrate judge first noted that the fact
that Dr. Capage did not evaluate plaintiff's
“12.10-type” impairments is irrelevant because
the plaintiff does not contend that he satisfies Listing
12.10. The magistrate judge noted that arguments not raised
in a motion for summary judgment are waived.
as to the plaintiff's argument that Dr. Capage's
opinion is less reliable because he only “signed
off” on a document, the magistrate judge found that the
plaintiff's reliance on Murphy is misplaced
because this case is distinguishable from Murphy. As
to Dr. Shaver, the magistrate judge found the plaintiff's
arguments rang hollow for reasons already stated; the doctor
did not need to evaluate plaintiff's 12.10-type
impairments or review the entirety of the record. The
magistrate judge also addressed the opinions of Dr. Franyutti
and Dr. Lateef, and found no ...