United States District Court, W.D. Virginia, Danville Division
CHERYL A. DILLON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner, Defendant.
MEMORANDUM OPINION
JACKSON L. KISER, SENIOR UNITED STATES 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 [ECF
No. 17]. The R&R was filed on December 8, 2017 [ECF No.
21], and Plaintiff Cheryl A. Dillon filed objections on
December 21 [ECF No. 22]. The Commissioner responded [ECF No.
23], 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 and grant the Commissioner's
Motion for Summary Judgment.
I.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On
August 9, 2012, Plaintiff filed an application for
supplemental security income pursuant to Title XVI of the
Social Security Act. See 42 U.S.C. §§
1381-1383f (2016). (R. 153-161.) In her application,
Plaintiff alleged that she had been disabled since May 1,
2007, due to a combination of fibromyalgia, chronic
migraines, type 2 diabetes, sleeping problems, irritable
bowel syndrome, acid reflux, anxiety, a protruding disc in
her neck, and short term memory loss. (See, e.g., R.
62.) The Commissioner denied Plaintiff's claims initially
on January 9, 2013, and again upon reconsideration on
September 23, 2013. (See R. 62-84.)
On
December 22, 2014, Plaintiff appeared with her attorney
before Administrative Law Judge Mary Peltzer (“the
ALJ”). (R. 30-61.) Both Plaintiff and a vocational
expert, Andrew Bale, testified. (Id.) In a written
decision dated February 3, 2015, the ALJ determined that
Plaintiff was not disabled within the meaning of the Act.
(See generally R. 14-25.) She found that Plaintiff
suffered from “fibromyalgia, trochanteric bursitis,
plantar facilities, and obesity, ” all of which
qualified as serious impairments. (R. 16 (citing 20 C.F.R.
§ 416.920(c)).) The ALJ found that Plaintiff did not
have an impairment or combination or impairments that met or
medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R.
18 (citing 20 C.F.R. §§ 416.920(d), 416.925,
416.926).)
After
consideration of the entire Record, the ALJ concluded that
Plaintiff has the residual functional capacity to perform
sedentary work as defined in 20 C.F.R. § 416.967(a),
with some limitations. (See R. 18-23.) Although the
ALJ determined that Plaintiff was not capable of performing
past relevant work, she did determine that Plaintiff would be
able to perform jobs that exist in significant numbers in the
national economy, such as inspector and assembler. (R. 23-24
(citing 20 C.F.R. §§ 416.969 and 419.969(a).)
Accordingly, the ALJ concluded that Plaintiff was not
disabled within the meaning of the Act. (R. 24.) The Appeals
Council denied Plaintiff's request for review, and the
decision of the ALJ became the final decision of the
Commissioner on July 8, 2016. (R. 1-3.)
On
August 17, 2016, Plaintiff filed suit in this Court to
challenge the final decision of the Commissioner. (Compl.
[ECF No. 2].) Pursuant to 28 U.S.C. § 636(b)(1)(B), I
referred the case to the United States Magistrate Judge for
consideration. The parties filed cross motions for summary
judgment. (See Pl.'s Mot. Summ. J., Feb. 17,
2017 [ECF No. 15]; Def.'s Mot. Summ. J., Mar. 20, 2017
[ECF No. 17].) On December 8, 2017, Judge Hoppe filed his
Report and Recommendation (“R&R”),
recommending that I grant the Commissioner's motion for
summary judgment and affirm the decision of the Commissioner.
(R&R, Dec. 8, 2017 [ECF No. 21].) On December 21,
Plaintiff filed her objections to the R&R. (Pl.'s
Obj., Dec. 21, 2017 [ECF No. 22].) The Commissioner responded
[ECF No. 23], so the matter is 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
makes two primary objections. First, she contends Magistrate
Judge Hoppe erroneously concluded that the ALJ's
discussion of her reasons for discounting Plaintiff's
statements about her pain and overall symptoms was
sufficient. Second, she argues the Magistrate Judge erred in
finding that the ALJ's consideration of Dr. Lemmer's
opinion was proper. Neither objection withstands scrutiny.
Plaintiff
first maintains that, although the Magistrate Judge
acknowledged that “the ALJ arguably overstated the
conservative nature of Dillon's treatment during [a]
seven-month period, ” the Magistrate Judge erroneously
concluded that the ALJ's observation was accurate as to
the bulk of Plaintiff's treatment. She argues that the
ALJ did not “distinguish between the treatment
[P]laintiff received for her fibromyalgia versus the
treatment she received for her other severe impairments or
trochanteric bursitis and plantar fasciitis.” Her
citations to the ALJ's opinion, specifically page 16,
offer no guidance as to the underlying substance of her
objection.
She
apparently takes issue with the fact that the ALJ considered
her entire treatment history in concluding that her treatment
has been “relatively routine and conservative
overall.” (R. 22.) When reviewing the ALJ's
decision as a whole, however, it is clear that she made the
appropriate delineation between Plaintiff's treatment for
fibromyalgia and her treatment for other complaints. In her
discussion of Plaintiff's “suspected fibromyalgia,
” the ALJ traced Plaintiff's treatment for that
condition, detailing her appointments with both Dr. ...