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Keith v. Berryhill

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

May 15, 2018

BRENDA H. KEITH, 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. 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.


         On 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. 138-71.)

         Plaintiff 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).)

         After 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.)

         On 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.


         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).


         Following 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, [1] are addressed in turn.

         A. Treating Physician's Opinion

         It goes 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. ยงยง 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 ...

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