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Dillon v. Berryhill

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

March 13, 2018

CHERYL A. DILLON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner, Defendant.



         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.


         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.


         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).


         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. ...

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