United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
RECOMMENDATION [DKT. NO. 18], DENYING PLAINTIFF'S MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 13], GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 17], AND DISMISSING THE
CASE WITH PREJUDICE
M. KEELEY, UNITED STATES DISTRICT JUDGE.
March 26, 2018, the plaintiff, Regina Ratoma Bertrand Fazen
(“Fazen”), filed a complaint seeking review of
the adverse decision of the defendant, Nancy Berryhill,
Acting Commissioner of Social Security (“the
Commissioner”) (Dkt. No. 1). On December 20, 2018, the
Honorable Michael J. Aloi, United States Magistrate Judge,
issued a Report and Recommendation (“R&R”),
recommending that the Court affirm the Commissioner's
decision (Dkt. No. 18). Pending before the Court are
Fazen's timely objections to the Magistrate Judge's
recommendations (Dkt. No. 19).
reasons that follow, the Court OVERRULES
Fazen's objections (Dkt. No. 19) and
ADOPTS the R&R (Dkt. No. 18).
Accordingly, it DENIES Fazen's motion
for summary judgment (Dkt. No. 13), GRANTS
the Commissioner's motion for summary judgment (Dkt. No.
17), AFFIRMS the Commissioner's
decision, and DISMISSES this case
Court has jurisdiction over this case pursuant to 42 U.S.C.
§ 405(g) and 42 U.S.C. § 1383(c)(3). As part of its
review of the R&R, the Court incorporates by reference
Magistrate Judge Aloi's thorough recitation of the facts
surrounding Fazen's disability insurance benefits
(“DIB”) and supplemental security income
(“SSI”) claims, as well as his articulation of
the Commissioner's five-step evaluation process (Dkt. No.
18 at 2-32). Because Fazen's arguments on appeal relate
only to her alleged mental impairments, the Court focuses its
discussion on that issue.
record reflects that Fazen began seeing psychiatrist Alfredo
Aguirre, M.D. (“Dr. Aguirre”) no later than
December 2011, at which time she reported feelings of
anxiety, anger, frustration, and moodiness, a personal
history of anxiety, depression and migraine headaches, and a
family history of bipolar disorder (Dkt. No. 9-9 at 41). On
December 7, 2011, Dr. Aguirre diagnosed Fazen with major
depression, anxiety disorder, and panic disorder, and
prescribed an antidepressant. Id. at 41. Dr. Aguirre
continued to treat Fazen once every one to two months over
the next several years, prescribing various mental health
medications as she continued to report symptoms of anxiety
August 2, 2012, Fazen, then 36 years old, filed a
“protective” application for disability insurance
benefits, alleging an onset date of June 1, 2012 (Dkt. No.
9-7 at 1-8). On March 25, 2014, Dr. Aguirre completed a
Mental Impairment Questionnaire at the request of the state
agency (Dkt. No. 9-10 at 30-39). Dr. Aguirre opined that
Fazen had marked daily living restrictions; extreme social
functioning difficulties; extreme concentration, persistence,
or pace difficulties; and one or two extended episodes of
decompensation within a 12-month period. Id. at 34.
He also indicated, however, that Fazen was not limited in
understanding and remembering short and simple instructions
and was only moderately limited in remembering locations and
work-like procedures. Id. at 36.
terms of concentration and persistence, Dr. Aguirre opined
that, with the exception of marked limitations in the
abilities to carry out detailed instructions and to sustain
an ordinary routine without special supervision, Fazen was
only moderately limited in other abilities in this category,
including the following: carrying out simple instructions;
maintaining attention and concentration for extended periods;
performing activities within a schedule, maintaining regular
attendance, and being punctual; working in coordination with
or proximity to others without being distracted by them;
making simple work-related decisions; completing a normal
workday and workweek without interruptions from
psychologically based symptoms; and performing at a
consistent pace without an unreasonable number and length of
rest periods. Id. at 36-37.
Aguirre further opined that, while Fazen was markedly limited
in adaptation (i.e., , the ability to respond
appropriately to changes in the work setting) and some social
interaction abilities (e.g., the ability to accept
instructions and respond appropriate to criticism from
supervisors), there was no evidence that she was limited in
her abilities to get along with coworkers or peers without
distracting them or exhibiting behavioral extremes, or to
maintain socially appropriate behavior and to adhere to basic
standards or neatness or cleanliness. Id. at 37-38.
Commissioner denied Fazen's claims at both the initial
and reconsideration levels (Dkt. No. 9-5 at 3-7, 12-18). Upon
Fazen's request, Administrative Law Judge Karen B. Kostol
(“ALJ”) held a hearing on May 8, 2014 (Dkt. No.
9-3 at 2-25), following which she denied Fazen's claim
(Dkt. No. 9-4 at 51-66). Fazen sought review from the Appeals
Council, which remanded the case to the ALJ. Id. at
a supplemental hearing on December 5, 2016 (Dkt. No. 9-2 at
50-81), the ALJ entered a second decision denying Fazen's
claims on August 29, 2017. Id. at 21-46. On January
26, 2018, the Appeals Council denied Fazen's request for
review, id. at 2-4, which made the ALJ's second
decision the final decision of the Commissioner. Thereafter,
on March 26, 2018, Fazen filed suit in this Court, seeking
reversal of the Commissioner's final ...