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Kelly v. Colvin

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

June 16, 2015

LATASHA M. KELLY, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM OPINION

JACKSON L. KISER, Senior District Judge.

Before me is the Report and Recommendation ("R&R") of the United States Magistrate Judge recommending that I grant the Commissioner's Motion for Summary Judgment, deny Plaintiff's Motion for Summary Judgment/Motion to Remand, and affirm the final decision of the Commissioner. The R&R was filed on January 5, 2015, and Plaintiff Latasha M. Kelly ("Plaintiff") filed objections on January 15. The Commissioner did not respond in any fashion, and the matter is now ripe for review. See Fed.R.Civ.P. 72(b). After careful review and consideration, and for the reasons stated below, I will overrule Plaintiff's objections, adopt the R&R of the Honorable Joel C. Hoppe, grant the Commissioner's Motion for Summary Judgment, deny Plaintiff's Motion for Summary Judgment/Motion to Remand, and affirm the final decision of the Commissioner.

I. STATEMENT OF FACTS AND PROCEDURAL HISTORY

On January 21, 2011, Plaintiff filed an application for a period of disability insurance benefits pursuant to Title II of the Social Security Act ("the Act"), and supplemental security income pursuant to Title XVI. See 42 U.S.C. §§ 401-433, 1395-1395ccc. (See R. 250-273.) In her application, Plaintiff alleged that she had been disabled since December 20, 2010, [1] due to her eyesight and migraines. (See, e.g., R. 58, 208, 222-23, 225, 228, 246.) The Commissioner denied Plaintiff's claims initially on January 25, 2010, and again upon reconsideration on August 15, 2011. (See R. 58-68, 79-94.)

On August 16, 2012, Plaintiff appeared with her attorney before Administrative Law Judge Drew A. Swank ("the ALJ"). (R. 13.) Only Plaintiff testified at the hearing. (R. 34-57.) In a written decision dated September 7, 2012, the ALJ determined that Plaintiff was not disabled within the meaning of the Act. (See generally R. 13-25.) He found that Plaintiff has "vision impairment [and] affective disorder." (R. 15 (citing 20 C.F.R. §§ 404.1520(c), 416.920(c)).) ALJ Swank found that Plaintiff did not have an impairment or combination or impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 16 (citing 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926).)

After consideration of the entire Record, the ALJ concluded that Plaintiff has the residual functional capacity ("RFC") to perform the full range of work at all exertional levels, subject to some nonexertional limitations. (R. 17). Specifically, the ALJ determined that Plaintiff "should avoid concentrated exposure to hazards due to her vision impairment, " and he limited her "to simple, unskilled work with occasional contact with the general public." (Id.) He also concluded that Plaintiff "is able to meet the intellectual and emotional demands of at least unskilled, competitive remunerative work on a sustained basis. She is capable of understanding, remembering, and carrying out simple instructions, making judgments that are commensurate with the functions of unskilled work (i.e., simple work-related decisions), responding appropriately to supervision, coworkers, and usual work situations, and dealing with changes in a routine work setting." (Id.) Although the ALJ determined that Plaintiff was not capable of performing past relevant work, he did conclude, "There are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform." (R. 23-24 (citing 20 C.F.R. §§ 404.1569, 404.1569(a), 416.969, 416.969(a).) Accordingly, he concluded that Plaintiff was not disabled within the meaning of the Act. (R. 27.) The Appeals Council denied Plaintiff's request for review, and the decision of the ALJ became the final decision of the Commissioner on October 11, 2013. (R. 1-4.)

On December 9, 2013, Plaintiff filed suit in this Court to challenge the final decision of the Commissioner. (Compl. [ECF No. 1].) Pursuant to 28 U.S.C. § 636(b)(1)(B), I referred the case to the United States Magistrate Judge for consideration. Plaintiff and the Commissioner filed cross-motions for summary judgment. (Pl.'s Mot. Summ. J., Mar. 12, 2014 [ECF No. 10]; Def.'s Mot. Summ. J., June 17, 2014 [ECF No. 12].) On January 5, 2015, Judge Hoppe filed his Report and Recommendation, recommending that I affirm the final decision of the Commissioner. (R&R, Jan. 5, 2015 [ECF No. 14].) On January 15, 2015, Plaintiff filed objections to the R&R. (Pl.'s Obj., Jan. 15, 2015 [ECF No. 15] [hereinafter "Pl.'s Obj."].) The Commissioner did not respond, and the matter is now ripe for review.

II. STANDARD OF 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, " Mastro, 270 F.3d at 176 (quoting Craig, 76 F.3d at 589), or the secretary's designate, the ALJ, Craig, 76 F.3d at 589 (quoting Walker, 834 F.2d at 640).

III. DISCUSSION

Plaintiff's first objection to Judge Hoppe's R&R is that the ALJ, and thus Judge Hoppe, "failed to properly weigh the medical evidence and failed to property determine Ms. Kelly's RFC." (Pl.'s Obj. pg. 2.) In support of this argument, Plaintiff makes two points: first, the ALJ improperly rejected parts of Plaintiff's treating physician's opinions; and second, the ALJ improperly discounted the opinions of Plaintiff's treating therapist.

When evaluating medical opinions, the ALJ should consider "(1) whether the physician has examined the applicant, (2) the treatment relationship between the physician and the applicant, (3) the supportability of the physician's opinion, (4) the consistency of the opinion with the record, and (5) whether the physician is a specialist." Johnson v. Barnhart, 434 F.3d 650, 654 (4th Cir. 2005). An ALJ's determination as to the weight to be assigned to a medical opinion generally will not be disturbed absent some indication that the ALJ has dredged up "specious inconsistencies, " Scivally v. Sullivan, 966 F.2d 1070, 1077 (7th Cir. 1992), or has failed to give a sufficient reason for the weight afforded a particular opinion, see 20 C.F.R. § 404.1527(d).

According to 20 C.F.R. §§ 404.1527(d)(2) & 416.927(d)(2), a treating source's opinion on issues of the nature and severity of the impairments will be given controlling weight when well supported by medically acceptable clinical and laboratory diagnostic techniques and when the opinion is consistent with the other substantial evidence in the record. This is so because "a treating physician's opinion is ...


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