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King v. Colvin

United States District Court, Fourth Circuit

November 26, 2013

TAMMY S. KING, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


JACKSON L. KISER, Senior District Judge.

Before me is the Report and Recommendation ("R & R") of the Hon. B. Waugh Crigler recommending that I grant the Commissioner's Motion for Summary Judgment [ECF No. 15], affirm the Commissioner's final decision, and dismiss this case. Plaintiff filed timely Objections on October 15, 2013 [ECF No. 18], and the Commissioner responded on October 24, 2013 [ECF No. 19]. The Objections are now ripe for consideration. See Fed.R.Civ.P. 72(b). I have reviewed the Magistrate Judge's recommendation, Plaintiff's Objections, the Commissioner's response, and the relevant portions of the Record. For the reasons stated below, I will OVERRULE Plaintiff's Objections, ADOPT Judge Crigler's R & R, DENY Plaintiff's Motion for Summary Judgment, GRANT the Commissioner's Motion for Summary Judgment, and DISMISS this case from the active docket of the Court.


On June 1, 2010, Plaintiff Tammy S. King ("Plaintiff") filed an application for a period of disability and disability insurance benefits pursuant to Titles II and XVIII of the Social Security Act, and supplemental security income pursuant to Title XVI.[1] See 42 U.S.C. §§ 401-433, 1381-1383f, 1395-1395ccc. (See R. 123-131.) In her application, Plaintiff alleged that she was disabled as of April 16, 2010. (R. 11, 125.) Plaintiff's claims were initially denied on July 21, 2010, and again upon reconsideration on November 8, 2010. (R. 182-199, 209-230.) On December 20, 2010, Plaintiff requested a hearing before an Administrative Law Judge. (R. 82-83.) On August 24, 2011, Administrative Law Judge Brian Kilbane ("the ALJ") held an administrative hearing via video to determine whether Plaintiff was disabled within the meaning of the Social Security Act. (See R. 40-62.) Plaintiff was represented by counsel, testified on her own behalf, and called a witness to support her claims. (See R. 40-58.) The ALJ also heard testimony from Dr. Gerald Wells, a vocational expert. (See R. 58-62.)

On September 23, 2011, the ALJ submitted his decision, which included findings of fact and conclusions of law. (R. 11-32.) The ALJ applied the five-step evaluation process as set forth in 20 C.F.R. §§ 404.1520(a) and 416.920(a). (R. 12-13.) He initially found that Plaintiff had not engaged in substantial gainful activity since April 16, 2010, her alleged disability onset date, and that Plaintiff suffered from minimal cervical spondylosis with mild C6 radiculopathy, mild lumbar degenerative disc disease with mild scoliosis, and sleep disordered breathing. (R. 13, 18.) The ALJ determined that Plaintiff's impairments were "severe" because they caused "more than minimal limitation of [Plaintiff's] basic work-related capacities...." (R. 18.) Ultimately, however, the ALJ concluded that Plaintiff "did not have an impairment or combination of impairments that meet or medically equaled the severity of one of the listed impairments" in the applicable regulations. (R. 14-15.) Based on the evidence, the ALJ determined that Plaintiff "has a residual functional capacity less than that required to perform the full range of light work as defined in 20 C.F.R. [§§] 404.1567(b) and 416.967(b)." (R. 15.) The ALJ concluded that there were jobs that existed in the national economy that Plaintiff could perform that she was not disabled under applicable law and regulations. (R. 30-32.)

Plaintiff appealed the ALJ's decision to the Appeals Council on November 23, 2011. (R. 7.) The Appeals Council considered Plaintiff's additional evidence, but found no basis in the record or in the reasons advanced on appeal to review the decision. (R. 1-5.) It denied review on March 5, 2012, and accordingly the ALJ's decision became the Commissioner's final decision. (R. 1-3).

Plaintiff instituted the present civil action in this Court on February 15, 2013. (Compl. [ECF No. 3].) Thereafter, I referred the matter to Magistrate Judge B. Waugh Crigler for consideration of Plaintiff's and the Commissioner's dispositive motions. (Order, July 12, 2013, [ECF No. 12].) On September 27, 2013, Judge Crigler issued his R & R in which he concluded that I should grant the Commissioner's Motion for Summary Judgment and dismiss this case. (R & R. [ECF No. 17].)

On October 15, 2013, Plaintiff filed timely Objections to the R & R. (Pl.'s Obj. [ECF No. 18].) The Commissioner filed a timely response to Plaintiff's Objections (Def.'s Resp. [ECF No. 19]), and the matter is now ripe for review.


Congress has limited the judicial review I may exercise over decisions of the Social Security Commissioner. I am required to uphold the decision where: (1) the Commissioner's factual findings are supported by substantial evidence; and (2) the Commissioner applied the proper legal standard. See 42 U.S.C. § 405(g) (2012); Craig v. Chater , 76 F.3d 585, 589 (4th Cir. 1996). The Fourth Circuit has long defined substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Mastro v. Apfel , 270 F.3d 171, 176 (4th Cir. 2001) (quoting Richardson v. Perales , 402 U.S. 389, 401 (1971)). In other words, the substantial evidence standard is satisfied by producing more than a scintilla but less than a preponderance of the evidence. Laws v. Celebrezze , 368 F.2d 640, 642 (4th Cir. 1966).

The Commissioner is charged with evaluating the medical evidence and assessing symptoms, signs, and findings to determine the functional capacity of the claimant. 20 C.F.R. §§ 404.1527-404.1545; see Shively v. Heckler , 739 F.2d 987, 990 (4th Cir. 1984) (noting that the role of the ALJ, not the Vocational Examiner, is to determine disability). The Regulations grant the Commissioner latitude in resolving factual inconsistencies that may arise during the evaluation of the evidence. 20 C.F.R. §§ 404.1527, 416.927 (2013). Unless the decision lacks substantial evidence to support it, the ultimate determination of whether a claimant is disabled is for the ALJ and the Commissioner. See id. §§ 404.1527(e), 416.927(e); Walker v. Bowen , 834 F.2d 635, 640 (7th Cir. 1987). If the ALJ's resolution of the conflicts in the evidence is supported by substantial evidence, then I must affirm the Commissioner's final decision. Laws , 368 F.2d at 642. In reviewing the evidence, I must not "undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [my] judgment for that of the Secretary.[2]" Mastro , 270 F.3d at 176 (quoting Craig , 76 F.3d at 589).

An additional standard of review, however, applies to my consideration of Judge Crigler's R & R under Federal Rule of Civil Procedure 72(b) and the Federal Magistrate Act, 28 U.S.C. § 636. Rule 72(b) provides that "[t]he district judge... shall make a de novo determination... of any portion of the magistrate judge's disposition to which specific written objection has been made...." FED. R. CIV. P. 72(b) (emphasis added); see also 28 U.S.C. § 636(b)(1)(C). "General objections to a magistrate judge's report and recommendation, reiterating arguments already presented, lack the specificity required by Rule 72 and have the same effect as a failure to object." Elliott v. Comm'r of Soc. Sec., Case No. 6:10-cv-00032, 2011 U.S. Dist. LEXIS 92673, at *6 (W.D. Va. Aug. 19, 2011) (citing Veney, 539 F.Supp.2d at 845). Accordingly, "[a]ny part of the magistrate judge's disposition that has not been properly objected to is reviewed for, at most, clear error." Veney v. Astrue , 539 F.Supp.2d 841, 844 (W.D. Va. 2008) (citations omitted). I should uphold those portions of the magistrate judge's report and recommendation to which a plaintiff makes no objection unless it is clearly erroneous or contrary to law. Id . (citing Orpiano v. Johnson , 687 F.2d 44, 48 (4th Cir. 1982)).


Plaintiff raises two objections to Magistrate Judge Crigler's R & R, each of which will be addressed in turn. Plaintiff first argues that the ALJ erred in not considering Plaintiff's anxiety to be a severe impairment. Plaintiff says that he she was first prescribed medication for anxiety in January 2010 (R. 285), and that in August 2010 Kim Grossman, R.N., noted her history of chronic anxiety (R. 368). Her records indicate that she has had ongoing problems with anxiety through ...

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