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Jacobs v. Berryhill

United States District Court, E.D. Virginia, Norfolk Division

February 2, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         This matter is before the court on the Objections of the Plaintiff, Robert Leroy Jacobs, to the Magistrate Judge's Report & Recommendation ("R&R"), and the Response from the Defendant, Nancy A. Berryhill, Acting Commissioner of the Social Security Administration ("SSA"}. ECF Nos. 17, 18. The R&R recommended that the court grant the Defendant's Motion for Summary Judgment, thereby upholding the Administrative Law Judge's ruling denying the Plaintiff's claim for disability insurance benefits. ECF No. 16. For the reasons stated herein, this court finds that the Administrative Law Judge ("ALJ") applied the correct legal standards and came to a conclusion supported by substantial evidence.


         A. Factual & Procedural History [1]

         On October 26, 2012, the Plaintiff applied for disability-insurance benefits, stating that he became disabled on March 15, 2012, due to a bad back, problems with his left knee and left ankle, and diabetes. R. at 272-75, 309, 322.[2] The SSA denied the request for benefits on August 27, 2013, and again upon reconsideration on January 14, 2014. R. at 219-21, 229-35. On August 13, 2015, an ALJ held a hearing where he received testimony from the Plaintiff, who was represented by counsel, and a vocational expert. R. at 14 9, 156-85. At the hearing, the Plaintiff amended the onset date of disability to September 18, 2012. R. at 158-59. On August 26, 2015, the ALJ denied the Plaintiff's claim, finding that he had not been under a disability, as defined in the Social Security Act. R. at 141 (citing 20 C.F.R. § 1520(g)).

         On September 21, 2016, the Appeals Council denied the Plaintiff's request for review of the ALJ's decision. R. at 1-6. Thus, the ALJ's findings stand as the final decision of the SSA for purposes of judicial review. See 42 U.S.C. §§ 405(h), 1383(c)(3); 20 C.F.R. § 404.981. After exhausting all administrative remedies, on November 29, 2016, the Plaintiff brought this action under 42 U.S.C. § 405(g), seeking judicial review of the SSA's final decision. ECF No. 3. The Defendant filed an Answer on February 23, 2017. ECF No. 8.

         On . February 24, 2017, this matter was referred to United States Magistrate Judge Robert J. Krask, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b). ECF No. 10. Following the Magistrate Judge's Order, ECF No. 11, the parties filed cross motions for summary judgment along with supporting memoranda on March 28 and 30, 2017, and April 26, 2017. ECF Nos. 12-13, 14-15. On December 6, 2017, the Magistrate Judge filed the R&R, which recommended affirming the SSA's final decision. R&R at 1, ECF No. 16. By copy of the R&R, the parties were advised of their right to file written objections to the findings and recommendations made by the Magistrate Judge. Id. at 36. On December 20, 2017, the Plaintiff filed Objections to the R&R, ECF No. 17, and the Defendant responded on January 3, 2018. ECF No. 18.

         B. ALJ's Decision

         In evaluating the Plaintiff's disability claim, the ALJ followed the SSA's five-step evaluation process used to determine whether an individual is disabled. R. at 131-32; 20 C.F.R. § 404.1520(a). The ALJ considered whether the Plaintiff: (1) was engaged in substantial gainful activity; (2) had a severe impairment; (3) had an impairment that meets or medically equals a condition within the SSA's listing of official impairments; (4) had an impairment that prevents him from performing any past relevant work in light of his residual function capacity ("RFC");[3] and (5) had an impairment that prevents him from engaging in any other substantial gainful employment. R. at 132-41; 20 C.F.R. § 404.1520(a)(4).

         The ALJ found that the Plaintiff had not engaged in substantial gainful activity since September 18, 2012, and suffered from the following severe impairments: back disorder, bilateral knee disorder, left ankle disorder, hypertension, diabetes mellitus, right shoulder disorder, obesity, mood disorder, anxiety disorder, and substance abuse. R. at 132-33. The ALJ then determined that none of these severe impairments met or medically equaled conditions within SSA's list of official impairments. R. at 133-35. At step four, the ALJ found that the Plaintiff possessed an RFC to perform light work, as defined in 20 C.F.R. § 404.1567(b), subject to certain limitations. R. at 135. Based upon this RFC, the ALJ then determined that the Plaintiff could not return to his past relevant work as an automobile detail manager, security guard, assembler, or worker in a body shop or warehouse. R. at 139. However, at step five, the ALJ found that the Plaintiff still had the ability to engage in other substantial gainful employment, including working as an information clerk, a small products assembler, or a clerical checker, and that these jobs existed in significant numbers in the national economy. R. at 140-41. Based upon this finding, the ALJ found that the Plaintiff did not qualify as "disabled." R. at 141.

         In determining the Plaintiff's RFC, the ALJ followed the two-step process detailed in Social Security Ruling ("SSR") 96-7p, 61 Fed. Reg. 34, 483-85 (July 2, 1996). R. at 135-36.[4] The first step looks to whether there is an underlying medically determinable impairment that could reasonably be expected to produce the claimant's alleged pain or other symptoms. 61 Fed. Reg. at. 34, 484-85. If the claimant demonstrates this, the ALJ next evaluates' the intensity, persistence, and limiting effects" of the alleged symptoms and determines the extent to which they limit the individual's ability to do basic work activities. Id. at 34, 485. ”[W]henever the individual's statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the adjudicator must make a finding on the credibility of the individual's statements based on a consideration of the entire case record." Id.

         Here, the ALJ found that the Plaintiff's impairments could reasonably be expected to cause the alleged symptoms; however, his statements concerning their intensity, persistence, and limiting effects were not entirely credible. R. at 136. Specifically, the ALJ found that the Plaintiff "fail[ed] to establish that [his] musculoskeletal impairments . . . caused him to become unproductive in his daily routine." Id. The ALJ provided objective medical evidence to support this finding, including, inter alia, November 2012 records compiled at the U.S. Department of Veterans Affairs Medical Center in Hampton, Virginia ("VA Medical Center"), which overall found that the Plaintiff did not suffer neck or muscle pain and had a "smooth unassisted gait, " and 2013 records that also found that the Plaintiff had "an independent and safe gait with a cane" and lacked neck or muscle pain. R. at 136, 411, 584, 601, 711.

         The ALJ gave “no weight" to the opinions of Vincent Lee, M.D., a staff physician at the VA Medical Center. R. at 136-38. Dr. Lee opined in November 2014, and in February 2015, that the Plaintiff was unable to work due to back and knee pain as a result of his degenerative joint disease and arthritis. R. at 744-45, 753. The ALJ pointed out that this conclusion was inconsistent with Dr. Lee's notes from February 2015, which stated that the Plaintiff displayed a full range of motion of the musculoskeletal system, and had no joint or muscle pain. R. at 137, . 753. The ALJ added that Dr. Lee's April 2015 musculoskeletal examination was also "unremarkable, save for some pain and crepitus with range of motion in the knees, " and the subsequent imaging of his knees resulted in "only mild findings." R. at 137, 764, 771, 792. The ALJ additionally highlighted the contradiction between Dr. Lee's February 2015 remark that the "patient cannot work due to back pain" and his separate claim made that same month that the Plaintiff could perform work in a less than sedentary RFC. R. at 138, 746-47, 753.

         The ALJ noted other physicians' conclusions that were contrary to Dr. Lee's. For example, the ALJ mentioned the August 2013 findings of Chris Bovinet, D.O., who performed a consultative examination in conjunction with the Plaintiff's claim for disability benefits. R. at 138, 656-64. Dr. Bovinet found that the Plaintiff had a normal range of motion throughout, with only guarded range of motion of the right shoulder and left knee, along with mild crepitus in both knees. R. at 138, 660. Dr. Bovinet diagnosed the Plaintiff with pain in the left knee, right shoulder, and low back, and opined that the Plaintiff did "not demonstrate any major overall source of disability" and could perform a limited range of light work. R. at 138, 661. The ALJ also referenced the findings of state agency medical consultants at Disability Determination Services, who similarly concluded that the Plaintiff was capable of performing work in a limited light RFC. R. at 139, 213. Lastly, the ALJ gave significant weight to the forty percent (40%) VA disability rating, expressly ...

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