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Chestnut v. Colvin

United States District Court, W.D. Virginia, Danville Division

June 30, 2014



JACKSON L. KISER, Senior District Judge

Before me is the Report and Recommendation ("R & R") of the United States Magistrate Judge recommending that I 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 [ECF No. 22]. The R & R was filed on May 5, 2014, and Plaintiff Carla Sue Chestnut filed a timely Objection on May 19, 2014 [ECF No. 23]. The Commissioner offered no response within the subsequent fourteen (14) day period, and the matter is now ripe for review. See Fed.R.Civ.P. 72(b)(2). After careful review and consideration, and for the reasons stated below, I will OVERRULE Plaintiff's Objection, ADOPT the R & R of the Honorable Joel C. Hoppe, DENY Plaintiff's Motion for Summary Judgment [ECF No. 14], GRANT the Commissioner's Motion for Summary Judgment [ECF No. 17], and DISMISS this case from the active docket of the Court.


On June 30, 2009, Plaintiff Carla Sue Chestnut ("Plaintiff") protectively filed an application for disability insurance benefits ("DIB") and supplemental security income ("SSI") pursuant to Titles II and XVI of the Social Security Act ("the Act"). (R. at 22, 212); see 42 U.S.C. §§ 401-434, 1381-1383f (2014). Plaintiff alleges that she has been disabled since November 11, 2008, due to a combination of grand mal epileptic seizures, post-traumatic stress disorder/anxiety attacks, diabetes, and a back injury from a car accident in 2006. (R. at 212, 226.) At the time of her alleged onset date, Plaintiff was a 37-year-old college graduate with a certificate in business management. (R. at 52-53.)

Prior to that date, Plaintiff held a number of jobs that primarily involved the use of a telephone and computer.[1] (R. at 54-60, 227.) Although Plaintiff stopped working on November 11, 2008, she does not allege that it was the result of her impairments. (R. at 226-27.) Instead, Plaintiff indicates that she was laid off for other reasons and has been unable to find subsequent employment.[2] Plaintiff worked part-time as a telemarketer in 2009, but has not engaged in any substantial gainful activity since her alleged onset date. (R. at 24, 60-61.)

Plaintiff's claim was denied initially on January 26, 2010, and again, upon reconsideration, on August 3, 2010. (R. at 118-25, 131-34.) On June 22, 2011, Plaintiff, represented by counsel, appeared at a hearing before Administrative Law Judge ("ALJ") Robert D. Marcinkowski. (R. at 49-101, 136.) Plaintiff's friend, Holly Mackey, and a vocational expert ("VE"), Linda Ebersold, also testified at the hearing. (R. at 78-100.) In a decision dated July 22, 2011, the ALJ concluded that Plaintiff was not disabled under the Act. (R. at 22-40.)

The ALJ found that Plaintiff has the following severe impairments: insulin-dependent diabetes mellitus, post-traumatic stress disorder, an affective disorder, and obesity. (R. at 25-27.) None of these impairments, or combination of impairments, was found to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 27-29.) After consideration of the entire Record, the ALJ found that Plaintiff has the residual functional capacity ("RFC") to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a), subject to several additional limitations.[3] (R. at 29-36.) In addition, the ALJ found that Plaintiff "can understand, remember and carry out simple instructions and perform simple routine tasks." (R. at 29.) He determined that she could not, however, perform any of her past relevant work. (R. at 36-37.)

In light of Plaintiff's age, education, work experience, and RFC, and based on the testimony of the VE, the ALJ found that Plaintiff was capable of performing jobs that exist in significant numbers in the national economy.[4] (R. at 37-38.) Accordingly, the ALJ concluded that Plaintiff was not disabled within the meaning of the Act. (R. at 38.) On January 24, 2013, the Appeals Council denied Plaintiff's request for review, and the decision of the ALJ became the final decision of the Commissioner. (R. at 1-3.)

On February 27, 2013, Plaintiff filed suit in this Court to challenge the final decision of the Commissioner on the grounds that it is not supported by substantial evidence and is contrary to law and regulation. (Compl. [ECF No. 3].) Pursuant to 28 U.S.C. § 636(b)(1)(B), I referred the case to United States Magistrate Judge Joel C. Hoppe for consideration.[5] (Order, Feb. 24, 2014 [ECF No. 19].) Plaintiff and the Commissioner filed cross-motions for summary judgment. (Pl.'s Mot. Summ. J., Sept. 23, 2013 [ECF No. 14]; Def.'s Mot. Summ. J., Oct. 28, 2013 [ECF No. 17].) On May 5, 2014, Judge Hoppe filed his Report and Recommendation, recommending that I affirm the final decision of the Commissioner. (R & R [ECF No. 22].) On May 19, 2014, Plaintiff filed a timely Objection to the R & R. (Pl.'s Obj., May 19, 2014 [ECF No. 23].) The Commissioner offered no response, 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) (2014); 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 (2014); see Shively v. Heckler, 739 F.2d 987, 990 (4th Cir. 1984) (noting that it is the role of the ALJ, not the vocational expert, 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 (2014). 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.[6]" Mastro, 270 F.3d at 176 (quoting Craig, 76 F.3d at 589).


Plaintiff objects to six elements of the R & R. (Pl.'s Obj. 1-6.) In essence, Plaintiff argues: (1) the ALJ failed to give proper weight to the opinion of Dr. Henry Comiter; (2) the ALJ improperly discounted the testimony of Plaintiff's friend, Ms. Holly Mackey; (3) the ALJ improperly discounted Plaintiff's credibility; (4) the ALJ's misreading of the opinion of Dr. Cheryl Laird was not harmless error; (5) the ALJ misrepresented the findings of Dr. Muir and Dr. Hinkeldey; and (6) the representative occupations cited by the VE are inconsistent with Plaintiff's RFC and the ALJ's hypothetical. I will address each of these objections in turn.

1. The Opinion of Dr. Henry Comiter

On March 7, 2011, Plaintiff's neurologist, Dr. Henry Comiter, completed a "Seizures Medical Source Statement" form in which he opined on the nature and limiting effects of Plaintiff's seizure disorder. (R. at 942-45.) The ALJ considered Dr. Comiter's opinion in his assessment of Plaintiff's impairments, but ultimately assigned it "little weight because it is inconsistent with the medical evidence...." (R. at 27.) Plaintiff argues that the ALJ's reasons for doing so are insufficient and not supported by substantial evidence. (Pl.'s Obj. 1-3.) Specifically, Plaintiff contends that it was error to focus "on the issue of the number of seizures suffered by plaintiff instead of focusing on the entirety of Dr. ...

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