United States District Court, W.D. Virginia, Danville Division
BRENDA H. KEITH, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner, Defendant.
JACKSON L. KISER, SENIOR UNITED STATES DISTRICT JUDGE
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. 19]. The R&R was filed on January 17, 2018 [ECF No.
23], and Plaintiff Brenda H. Keith filed objections on
January 31 [ECF No. 24]. The Commissioner responded [ECF No.
25], 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.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
January 19, 2010, Plaintiff filed an application for a period
of disability and disability insurance benefits pursuant to
Title II of the Social Security Act (“the Act”)
and supplemental security income pursuant to Title XVI of the
Act. See 42 U.S.C. §§ 401-33; 1381-1383f
(2016). (R. 255-265.) In her application, Plaintiff alleged
that she had been disabled since January 12, 2011, due to a
combination of post-breast cancer lymphedema, migraines,
depression, lymphedema in her right arm and hand with pain
and swelling, debilitating fatigue, low back and neck pain,
bilateral knee pain, left foot pain, right foot swelling, and
a number of post-breast cancer issues, including
chemotherapy, radiation, mastectomy, and reconstruction.
(See, e.g., R. 114-15.) The Commissioner denied
Plaintiff's claims initially on January 11, 2013, and
again upon reconsideration on July 16, 2013. (See R.
requested a hearing before an Administrative Law Judge and,
on December 22, 2014, Plaintiff appeared with her attorney
before Administrative Law Judge Mary Peltzer (“the
ALJ”). (R. 43-79.) Both Plaintiff and a vocational
expert, Andrew Vail, testified. (Id.) In a written
decision dated February 18, 2015, the ALJ determined that
Plaintiff was not disabled within the meaning of the Act.
(See generally R. 12-36.) She found that Plaintiff
suffered from “right upper extremity edema status post
breast cancer; migraine headaches; and post-left foot bone
spur removal and osteoarthritis of the talonavicular joint,
” all of which qualified as serious impairments. (R. 15
(citing 20 C.F.R. §§ 404.1520(c) &
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.
18-19 (citing 20 C.F.R. §§ 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 & 416.926).)
consideration of the entire Record, the ALJ concluded that
Plaintiff had the residual functional capacity to perform
sedentary work as defined in 20 C.F.R. §§
404.1567(a) & 416.967(a), with some limitations.
(See R. 19-34.) 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 cashier, telephone solicitor, and order
clerk. (R. 35-36 (citing 20 C.F.R. §§ 404.1569,
404.1569(a), 404.1568(d), 416.969, 419.969(a) &
416.968(d).) Accordingly, the ALJ concluded that Plaintiff
was not disabled within the meaning of the Act. (R. 36.) The
Appeals Council denied Plaintiff's request for review,
and the decision of the ALJ became the final decision of the
Commissioner on September 17, 2016. (R. 1-4.)
November 7, 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., May 26, 2017
[ECF No. 15]; Def.'s Mot. Summ. J., July 26, 2017 [ECF
No. 19].) On January 17, 2018, 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, Jan.
17, 2018 [ECF No. 23].) On January 31, Plaintiff filed her
objections to the R&R. (Pl.'s Obj., Jan. 31, 2018
[ECF No. 24].) The Commissioner responded on February 14 [ECF
No. 25], so the matter is now ripe for review.
STANDARD OF REVIEW
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.
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).
the Magistrate's Report and Recommendation, Plaintiff
filed objections as to two primary conclusions: first,
regarding the ALJ's decision to give limited weight to
the opinion of Plaintiff's treating physician, Dr.
Strong; and second, as to the Magistrate Judge's
conclusion that the ALJ's overall discussion of
Plaintiff's symptoms was “more than
adequate.” These objections, and their various
permutations,  are addressed in turn.
Treating Physician's Opinion
without saying that, under the applicable regulations, a
treating physician's opinion is traditionally afforded
“controlling weight if it is well-supported by
medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial
evidence in the record.” Mastro v. Apfel, 270
F.3d 171, 178 (4th Cir. 2001). When there is
“persuasive contrary evidence, ” and if the ALJ
gives “good reasons” that are supported by the
record, the ALJ may give a treating physician's opinion
less weight. Hines v. Barnhart, 453 F.3d 559, 563
(4th Cir. 2006); 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2). Among the factors that an ALJ may consider in
deciding whether to afford a treating physician's opinion
less than controlling weight are the ...