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Lumpkin v. Commissioner of Social Security

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

March 19, 2019

CANDI M. LUMPKIN, Plaintiff,


          Hon. 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 deny Plaintiff Candi Lumpkin's (“Plaintiff”) Motion for Summary Judgment/Motion to Remand [ECF No. 17], grant the Commissioner's Motion for Summary Judgment [ECF No. 19], and affirm the Commissioner's decision. The R&R was filed on July 31, 2018 [ECF No. 21], and Plaintiff filed an objection on August 28 [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 February 19, 2014, 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 on February 28, she filed an application for supplemental security income pursuant to Title XVI of the Act. See 42 U.S.C. §§ 401-33; 1381-1383f (2018). (See R. 69; 77.) In her applications, Plaintiff alleged that she had been disabled since March 22, 2013, due to a combination of: complications arising from a right hip replacement; thyroid removal; and left foot issues due to compensating for the replaced right hip. (See, e.g., R. 69; 77.) The Commissioner denied Plaintiff's claims initially on May 15, 2014 (R. 76; 84), and again upon reconsideration on August 21, 2014. (See R. 94; 103.)

         Plaintiff requested a hearing before an Administrative Law Judge and on March 4, 2016, Plaintiff appeared with her attorney before Administrative Law Judge Ted Annos (“the ALJ”). (R. 38-68.) Both Plaintiff and a vocational expert, Dr. Gerald Wells, testified. (Id.) In a written decision dated March 25, 2016, the ALJ determined that Plaintiff was not disabled within the meaning of the Act. (See generally R. 19-33.) He found that Plaintiff suffered from “bilateral hip disorder status-post right hip replacement, and obesity, ” which qualified as severe impairments. (R. 21-22 (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 (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 has the residual functional capacity to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) & 416.967(a), except that she is “limited to occasional pushing and pulling with the lower extremities; can never climb ladders, ropes[, ] and scaffolds; can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; and can occasionally be exposed to extreme cold, vibration, and hazards (such as unprotected heights and moving mechanical parts).” (See R. 23- 31.) The ALJ concluded that, although Plaintiff was not capable of performing her past relevant work, there were jobs that existed in significant numbers in the national economy that she could perform, such as appointment clerk, credit card interviewer, and phone information clerk. (R. 31-32 (citing 20 C.F.R. §§ 404.1569, 404.1569(a), 416.969, & 416.969(a)).) Accordingly, the ALJ concluded that Plaintiff was not disabled within the meaning of the Act. (R. 32.) The Appeals Council denied Plaintiff's request for review (R. 1-3), and the decision of the ALJ became the final decision of the Commissioner on March 10, 2017. (Id.)

         On May 5, 2017, 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. Plaintiff filed a Motion for Summary Judgment/Motion to Remand on December 12, 2017 [ECF No. 17], and the Commissioner filed a Motion for Summary Judgment on January 9, 2018 [ECF No. 19]. On July 31, Judge Hoppe filed his Report and Recommendation (“R&R”), recommending that I deny Plaintiff's motion for summary judgment/motion to remand, grant the Commissioner's motion for summary judgment, and affirm the decision of the Commissioner. (R&R, July 31, 2018 [ECF No. 21].) On August 28, Plaintiff filed timely[1] objections to the R&R. (Pl.'s Obj., Aug. 31, 2018 [ECF No. 24].) The Commissioner responded on September 11 [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).


         Plaintiff has raised five objections to the R&R. They will be addressed in turn.

         Plaintiff's first objection-that the R&R misstated and misapplied the holding in Craig v. Chater, 76 F.3d 585, (4th Cir. 1996)-is unpersuasive. As discussed recently, see Pannell v. Berryhill, No. 4:17cv00025, 2019 WL 954984, at *3-4(W.D. Va. Feb. 26. 2019), Plaintiff's argument appears to create a rebuttable presumption upon a positive finding at Step One that Plaintiff will succeed at Step Two. This is not the law, and the R&R did not err in stating the law correctly. For the reasons discussed in Pannell, Plaintiff's first objection will be overruled.

         As to Plaintiff's second objection-that a treating physician's opinion is presumptively controlling unless and until the Commissioner shows that it is inconsistent to the evidence in the Record-I am unpersuaded. The text of the applicable regulations state: “If we find that a treating source's medical opinion on the issues(s) of the nature and severity of your impairments is well-supported by medically acceptable clinical and laboratory diagnostic techniques and not inconsistent with the other substantial evidence in your case record, we will give it controlling weight.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2) (emphasis added). The plain language of the controlling regulations require that something more than the existence of a treating relationship be shown before a treating physician's opinion is entitled to controlling weight. “It is an error to give an ...

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