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Nunn v. Berryhill

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

March 28, 2019

Carolyn A. Nunn, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION

          NORMAN K. MOON SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the Court on consideration of the parties' cross-motions for summary judgment, (dkts. 19, 23), the Report and Recommendation of United States Magistrate Judge Robert S. Ballou (dkt. 28, hereinafter “R&R”), Plaintiff's objections (dkt. 33), and the Commissioner's response thereto (dkt. 34). Pursuant to Standing Order 2011-17 and 28 U.S.C. § 636(b)(1)(B), the Court referred this matter to Magistrate Judge Ballou for proposed findings of fact and a recommended disposition. Judge Ballou's R&R advised this Court to deny Plaintiff's motion and grant Commissioner's motion. The Court now undertakes a de novo review of those portions of the R&R to which Plaintiff objects. See 28 U.S.C. § 636(b)(1)(B); Farmer v. McBride, 177 Fed.Appx. 327, 330 (4th Cir. 2006). Because the objections lack merit, the R&R will be adopted.

         I. Standard of Review

         A reviewing court must uphold the factual findings of the Administrative Law Judge (“ALJ”) if they are supported by substantial evidence and were reached through application of the correct legal standard. See 42 U.S.C. §§ 405(g), 1383(c)(3); Bird v. Comm'r of SSA, 669 F.3d 337, 340 (4th Cir. 2012). Substantial evidence requires more than a mere scintilla, but less than a preponderance, of evidence. Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001). A finding is supported by substantial evidence if it is based on “relevant evidence [that] a reasonable mind might accept as adequate to support a conclusion.” Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (per curiam). Where “conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, ” the Court must defer to the Commissioner's decision. Id.

         A reviewing court may not “re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment” for that of the ALJ. Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996) (citation omitted). “Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the Secretary (or the Secretary's designate, the ALJ).” Id. (quoting Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987)). “Ultimately, it is the duty of the [ALJ] reviewing a case, and not the responsibility of the courts, to make findings of fact and to resolve conflicts in the evidence.” Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Thus, even if the court would have made contrary determinations of fact, it must nonetheless uphold the ALJ's decision, so long as it is supported by substantial evidence. See Whiten v. Finch, 437 F.2d 73, 74 (4th Cir. 1971).

         II. Analysis

         Plaintiff does not object to the R&R's recitation of the claim history in this case, and for that reason that portion of the R&R will be incorporated into this opinion. (See R&R at 2-4). Briefly, Plaintiff filed for disability insurance benefits (“DIB”) under the Social Security Act based on fibromyalgia, sleeping disorder, anxiety, limited sitting and standing, and right leg numbness. (R&R at 2 (citing R268, 284)).[1] The ALJ found that Plaintiff was capable of performing work that was available in the economy, and thus, Plaintiff was not disabled. (R&R at 3-4 (citing R91)). The Appeals Council denied Plaintiff's request for review. (R&R at 4 (citing R1-4)).

         In her objections to Judge Ballou's R&R, Plaintiff contends that the limitations in her left hand, and the opinion of her doctor and the vocational expert (“VE”) regarding those limitations, should have been taken into account in the residual functional capacity (“RFC”) analysis. (Dkt. 33 at 2). She further claims that the R&R misstates factual evidence, [2] and does not properly address the ALJ's failure to discuss the combined effects of pain, back and neck problems. (Id.). The Commissioner contends that Plaintiff repeats the arguments she made in her initial brief. (Dkt. 34 at 1). Further stating that she essentially asks this Court to “re-weigh the evidence already fully considered by the ALJ and the Appeals Council and reach a different outcome, ” a review that is precluded by 42 U.S.C. § 405(g). (Id.).

         To the extent that Plaintiff states only “general objection to the entirety of the magistrate's report, ” they have the “same effect as an outright failure to object.” Veney v. Astrue, 539 F.Supp.2d 841, 844-45 (W.D. Va. 2008); see also Merritt v. Chcoran-Youell, 269 Fed. App'x 268, 269 (4th Cir. 2010). However, Plaintiff's objections to the determination of her RFC and her objections to the adequacy of the analysis of the ALJ's discussion of her additional medical conditions are sufficiently raised, and thus will be addressed by the Court.

         a. RCF Determination

         To qualify for DIB, Plaintiff must establish disability on or before her DLI, March 31, 2013. See 42 U.S.C. § 423(a). Evidence entered after the DLI “can be given weight if they relate back to the period when plaintiff was insured and provide evidence of plaintiff's impairments at the time.” Bishop v. Astrue, No. 1:10-2714-TMC, 2012 WL 951775, *4 (D.S.C. March 20, 2012). However, a claimant who first satisfies the medical requirements for disability only after her date last insured will not be entitled to DIB. See Blalock v. Richardson, 483 F.2d 773, 777 n. 9 (4th Cir. 1972) (upholding Secretary's denial of DIB despite the fact that the plaintiff was disable now because there was no positive evidence of this until after the DLI). It is the claimant's burden to prove that a disability existed at the DLI. Id. at 775.

         Here, Plaintiff claims that the “ALJ did not consider any evidence outside a narrow window, ignoring relevant evidence, ” and that this failure was not properly considered in the R&R. (Dkts. 20 at 9, 33 at 1). In his opinion, the ALJ notes that Plaintiff “must establish disability between February 28, 2013, her alleged onset date, and March 31, 2013, her date last insured, in order to be entitled to a period of disability and disability insurance benefits.” (R88). The ALJ's opinion then references not only the hand surgery Plaintiff received on February 28, 2013 and a follow up visit on March 13, 2013, but also dates outside of the relevant range. Id.

         The ALJ notes that on April 8 and April 23, 3013, Plaintiff's physical therapist stated that Plaintiff “had no problems with the motor functions of her extremities.” (Id.; see also, R1926, 1977-78). The ALJ also referenced follow up visits with Dr. Bravo and Dr. Ausband dated July 22 and July 31, 2013, stating that “the claimant's wrist displayed some tenderness, mild edema, and mild atrophy. However her surgical cite was well healed, her wrist range of motion was full, she could make a full composite grip, and her opposition was intact.” (R89). Accordingly, as noted in the R&R, it is clear that the ALJ considered evidence outside of the relevant time period, and in weighing that evidence, came to the conclusion that “through the date last insured, the claimant had the residual functional capacity to perform light work.” (R87; see also R&R 7- 8).

         Plaintiff also argues that neither the ALJ nor the R&R reference Plaintiff's September 10, 2014 visit with Dr. Bravo, which she claims is relevant to her RFC determination. (Dkt. 33 at 1). The Court recognizes that “medical evaluations made after a claimant's insured status has expired are not automatically barred from consideration.” Bird v. Commissioner of Social Sec. Admin., 699 F.3d 337, 340 - 41 (4th Cir. 2012). However, the post-dated evidence must sufficiently linked to the claimant's condition prior to the DLI. Id. Additionally, “it is the duty of the [ALJ] ...


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