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Barton v. Colvin

United States District Court, Western District of Virginia, Harrisonburg Division

May 20, 2014

BONNIE S. BARTON, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of the Social Security Administration Defendant

REPORT AND RECOMMENDATION

James G. Welsh U.S. Magistrate Judge.

Bonnie S. Barton brings this civil action challenging a final decision of the Commissioner of the Social Security Administration (“the agency”) denying her application for a period of disability and disability insurance benefits (“DIB”) under Title II of the Social Security Act, as amended (“the Act”), 42 U.S.C. §§ 416(i) and 423. Jurisdiction of the court is pursuant to 42 U.S.C. § 405(g).

I. ADMINISTRATIVE AND PROCEDURAL HISTORY

Claiming that she has been disabled and unable to work due residual wrist and arm pain associated with an August 1991 work-related injury to her right (non-dominant) distal ulnar joint, the plaintiff protectively filed for DIB on March 7, 1997 (R. 13, 17-18, 74, 148-152, 154-155, 181, 185, 187-188, 374, 521). This disability, she alleges, began on December 22, 1994, when her employer closed the clothing factory where she worked for various periods as a knitting machine operator, inspector and security guard (R. 16, 17, 19, 36, 45-46, 140, 374, 434, 558). Her claim was denied initially on May 13, 1997 (R. 61-62, 65-67). On August 18, 1997 it was denied on reconsideration (R. 63-64, 69-71), and following an administrative hearing held on January 26, 1998 (R. 35-60) it was denied by written administrative law judge (“ALJ”) decision dated April 13, 1998 (R. 13-22).

The Appeals Council’s subsequently denied her review request (R. 6-8), and the plaintiff sought court review pursuant to 42 U.S.C. § 405(g). On the basis of new evidence provided on administrative appeal, the magistrate judge issued a Report in which he recommended reversing the Commissioner’s decision and allow the ALJ “to consider the evidence regarding the plaintiff’s limitations before expressing his opinion about the availability of gainful activity” (R. 376). On March 29, 2000 the Report (R. 374-377) was adopted in its entirety; the decision denying the plaintiff’s DIB claim was reversed pursuant to sentence four of 42 U.S.C. § 405(g), and the matter was remanded to the Commissioner for further proceedings (R. 372-373, 378).

The Appeals council thereafter vacated the Commissioner’s decision and remanded the matter to the ALJ “for further proceedings consistent with the order of the court” (R. 378-379); on October 3, 2000 a supplemental hearing was held before a second ALJ (R. 430-446), and on February 28, 2001 a new written decision was issued (R. 361-370, 521). In response to this adverse result, the plaintiff sought Appeals Council review on the basis of a legally insufficient functional capacity determination. Concluding that the ALJ’s hypothetical question “provided a thorough rationale for his functional capacity [finding], ” the Appeals Council denied her review request (R. 351-352, 521); once again the plaintiff filed for court review (Barton v. Barnhart, 5:03cv00049 (WDVa. Jun. 9, 2003) (docket #3)), and for a second time the magistrate judge reviewed the administrative record. He determined that the Commissioner had discharged the agency’s burden at the fifth decisional step “to demonstrate that alternate gainful activity was available to [the plaintiff], ” and he recommended entry of an order affirming the Commissioner’s final determination (Id. (docket #6, pp 2-4)). By order entered on May 11, 2004 the magistrate judge’s Report was adopted; the final decision of the Commissioner was affirmed, and this apparently unsuccessful challenge by the plaintiff was dismissed and stricken from the court’s docket. Id. (docket #8). (See R. 496, 521).

Asserting an essentially identical claim, [1] the plaintiff almost immediately re-filed for DIB (R. 475, 521, 558-560). This claim too was denied initially and on reconsideration (R.475). Citing both res judicata and her long-past date last insured (December 31, 1999), the plaintiff’s request for an administrative hearing was dismissed on January 13, 2007 by a third ALJ (R. 475). After successfully obtaining Appeals Council review of the ALJ’s dismissal her re-filed claim (R. 521-523, 493-494), the Council concluded that res judicata did not apply to the plaintiff’s second application, because of the extensive revisions to musculoskeletal listings in the interim made the ‘“issues’… different” and a new substantive decision should be issued (R. 522). The ALJ’s dismissal, therefore, was vacated on September 13, 2009 and the claim administratively remanded (R. 467-471, 491, 521-523).[2]

Pursuant thereto, a new administrative hearing was held on April 5, 2010. At which time the ALJ heard testimony from the plaintiff, her husband, a medical witness and a vocational witness, and he also heard the argument of plaintiff’s council (R. 475, 897-942). The plaintiff contended that her functional capacities had been severely and permanently limited since December 1994 due to depression, an attention deficit disorder, obesity and chronic residual wrist, arm and shoulder pain stemming from her 1991 injury and the subsequent surgical repair of her right (non-dominant) wrist (R. 481-482, 906-909, 915-916).

Utilizing the five-step sequential evaluation process prescribed in the Commissioner's regulations at 20 C.F.R. § 404.1520, a third different ALJ made his review and assessment of the record. He too concluded the plaintiff was not disabled prior to December 31, 1999 (the expiration date of her insured status), and on July 10, 2010 he issued yet another new substantive decision consistent with the Appeals Council’s remand order (R. 475-488. 497-499, 501-503, 897-942). However, in reversing his assessment, the Appeals Council concluded the ALJ had not fully considered the plaintiff’s maximum functional capacity and had not provided adequate references in his decision to the specific supporting evidence (R. 490-492, 454). Consequently, the plaintiff’s claim was remanded once again for another administrative hearing and for additional vocational testimony (Id.).

Consistent with this remand, an administrative hearing was held before a fourth ALJ on August 30, 2012 (R. 841-896); additional vocational and other testimony was heard, and a new ALJ decision was thereafter issued on September 13, 2012 (R. 454-466). Once again, the plaintiff’s DIB claim was denied (R. 454-466), and this time her request for administrative review (R. 594-595) was also denied by the Appeals Council (R. 447-450). Therefore, this most recent ALJ decision stands as the final decision of the Commissioner for purposes of the court’s current judicial review. See 42 U.S.C. §§ 405(g).

Along with her Answer (docket #5) to the plaintiff’s Complaint (docket #3), the Commissioner has filed a certified copy of the Administrative Record (“R.”) (docket #7), which includes the evidentiary basis for the findings and conclusions set forth in the Commissioner’s final decision. Each party has moved for summary judgment (docket # 10 and # 14) and filed a supporting memorandum of points and authorities (docket # 11 and # 15). Oral argument was conducted on March 27, 2014 with the parties’ counsel each appearing telephonically (docket # 17). By standing order this case is now before the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

II. ALJ's FINDINGS

In his written decision, the ALJ made his findings and conclusions pursuant to the agency's five-step decisional process. After reaffirming that Ms. Barton insured status for DIB expired December 31, 2009 (R. 454, 457), he found that she had not engaged in work activity after her alleged disability onset date of December 30, 1994 (R. 457). Consistent with the principles of finality and fundamental fairness articulated by the Fourth Circuit in Albright v. Commissioner, 174 F.3d 473 (4th Cir. 1999) (interpreting Lively v. Secretary, HHS, 820 F.2d 1391 (4th Cir. 1987)), [3] the ALJ considering the administrative findings made by the ALJ in a written decision dated in February 2001[4] following the second administrative hearing and gave “great weight” to those earlier findings (R.455). Therein, among other findings, the ALJ noted that the plaintiff had in fact actively looked for work and applied to attend school after her alleged onset date, which “show[ed] that [she] was not as limited as [she] alleged” (R. 457). In addition to finding the severe [5] impairments identified by the ALJ in the February 2001 decision to be “consistent with the evidence, ” the ALJ found the following severe impairments: residuals of right shoulder surgery, numbness in the right hand, obesity, depression and anxiety (R. 457).

At step three of the agency’s decisional process, the ALJ determined that through her date last insured Ms. Barton's impairments did not meet the specific requirements of, or medically equal the criteria of, any Listings[6] (R. 459-461). In reaching this conclusion the plaintiff’s musculoskeletal impairments “in conjunction with [her] obesity” were evaluated by the ALJ under listing sections 1.02[7] and 1.04.[8] In making this assessment, he gave “great weight” to the earlier ALJ’s step-three findings, and he found the plaintiff’s musculoskeletal impairments had not resulted in an inability to ambulate effectively or resulted in an inability to perform fine or gross movements effectively (R.459). In his evaluation of her neurologic deficit under listings § 11.01 and 11.04B and in conjunction with her obesity, the ALJ found that she had experienced no persistent disorganization of motor function in two extremities, no peripheral neuropathy or other sustained disturbance of gross or dexterous movements (R. 459). In his consideration of the plaintiff’s “body habitus, ” he concluded that it “may be reasonably anticipated to produce or contribute to [her] symptoms of back or other musculoskeletal pain and could limit mobility and stamina;” however, he specifically found that her obesity in combination with any other severe impairment did not meet a listing (Id.).

The ALJ next determining that the plaintiff, during the relevant period, was unable to meet the light to medium exertional demands of her past relevant work (R. 464). After then considering the plaintiff's age, education, work experience, residual functional capacity assessment, and the vocational testimony, the ALJ concluded that through her date last insured there were jobs that existed in significant numbers in the national economy that the plaintiff could perform (R. 465-466).

III. SUMMARY AND RECOMMENDATION

Based on a thorough review of the administrative record and for the reasons herein set forth, it is RECOMMENDED that the plaintiff's motion for summary judgment be DENIED, the Commissioner's motion for summary judgment be GRANTED, an appropriate final judgment be entered AFFIRMING the Commissioner's decision denying a period of DIB benefits, and this matter be DISMISSED from the court's active docket.

IV. STANDARD OF REVIEW

The court's review in this case is limited to determining whether the factual findings of the Commissioner are supported by substantial evidence and whether they were reached through application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). Substantial evidence has been defined as “evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance” of the evidence. Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). “If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is ‘substantial evidence.’” Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990) (quoting Laws, 368 F.2d at 642). The court is “not at liberty to re-weigh the evidence ... or substitute [its] judgment for that of the [ALJ].” Johnson v. Barnhart, 434 F.3d650, 653 (4th Cir. 2005) (internal quotation marks omitted).

V. THE ADMINISTRATIVE RECORD

Age, Education and Vocational Experience

Ms. Barton was born in 1964, and she obtained a high school equivalent education (R. 43-44, 433, 465, 903). Her past employment included work as a knitting machine operator, quality assurance inspector, and security guard (R. 44-46, 74, 117-129, 216, 464, 887). These jobs were described by the vocational witness as exertionally light to medium and semi-skilled (R. 464, 887). The plaintiff has not worked since her employer, an apparel manufacturer, ceased operations in December 1994 (R. 45-47, 434, 437). According to the left hand dominant plaintiff (R.854), she is unable to perform any of these ...


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