United States District Court, W.D. Virginia, Lynchburg Division
Carolyn A. Nunn, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
K. MOON SENIOR UNITED STATES DISTRICT JUDGE
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.
Standard of Review
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.
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).
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)). 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
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,  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.).
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.
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.
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.
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).
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] ...