United States District Court, W.D. Virginia, Lynchburg Division
K. MOON, SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on the parties’ motions for
summary judgment (Dkt. 12, 19), the Report and Recommendation
(“R&R”) of Magistrate Judge Robert S. Ballou
(Dkt. 24), and Plaintiff’s objections to the R&R.
(Dkt. 25). 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 filed his R&R,
advising this Court to deny Plaintiff’s motion and
grant the Commissioner’s motion. (Dkt. 24). Plaintiff
filed timely objections, obligating the Court to undertake a
de novo review of the R&R. See 28
U.S.C. § 636(b)(1)(B); Farmer v. McBride, 177
Fed.App’x 327, 330 (4th Cir. 2006). Because the
objections lack merit, the Court will adopt Judge
Ballou’s R&R in full.
Standard of Review
district court’s review of a magistrate judge’s
report and recommendation is undertaken de novo.
See 28 U.S.C. § 636(b)(1)(C); Farmer v.
McBride, 177 Fed.App’x 327, 330–31 (4th Cir.
2006). While the Court gives no deference to the magistrate
judge’s proposed findings and conclusions of law in the
R&R, this 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); Biestek v.
Berryhill, 139 S.Ct. 1148, 1152 (2019); Bird v.
Comm’r of SSA, 669 F.3d 337, 340 (4th Cir. 2012).
Under this standard of review, the Court must “look
to an existing administrative record and ask whether it
contains ‘sufficien[t] evidence’ to support the
[ALJ’s] factual determinations.”
Biestek, 139 S.Ct. at 1154 (internal citations
omitted). 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) (internal
citations omitted). “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).
Plaintiff does not object to the R&R’s recitation
of the factual background and claim history in this case, the
Court incorporates those portions of the R&R into this
opinion. (See R&R 3–5). By way of summary,
Plaintiff was found to be disabled by the Social Security
Administration (“SSA”) on April 1, 2008 due to
respiratory failure caused by shunt infection. R. 51. On
December 3, 2014, the SSA determined Plaintiff was no longer
disabled as of that date. R. 153. After this decision was
upheld on reconsideration, R. 171–78, Plaintiff filed a
request and appeared before Administrative Law Judge David
Lewandowski (hereinafter “the ALJ”) on June 1,
2016. (Dkt. 13 at 1 (citing R. 94–128)), and again on
April 4, 2017 after receiving a consultative physical
examination. Id. at 2 (citing R. 129–52). The
ALJ determined that Plaintiff suffered from the following
impairments: “hydrocephalus status-post
ventriculoperitoneal shunt; lumbar spine degenerative disc
disease status-post laminectomy; cervical strain; obesity;
chronic obstructive pulmonary disease; blind spot in left
eye; hypertension; major depressive disorder; bipolar
disorder and anxiety disorder.” (Dkt. 24 at 4 (citing
R. 51). After determining that these impairments did not meet
or medically equal a listed impairment, R. 52–55, the
ALJ concluded that Plaintiff retained the residual functional
capacity (“RFC”) to perform a limited range of
sedentary work. R. 56.
determining whether Plaintiff was disabled, the ALJ was
required to work through an eight-step framework:
The Commissioner is required to ask, in sequence, whether:
(1) the claimant is engaging in substantial gainful activity;
(2) the claimant has an impairment that meets or equals the
requirements of a listed impairment; (3) the claimant has
medically improved; (4) the medical improvement is related to
the ability to work; (5) there is an exception to medical
improvement that applies; (6) the claimant has current
impairments in combination that are severe; (7) the
claimant’s residual functional capacity based on the
current impairments and if he can perform past relevant work;
and (8) whether other work exists that the claimant can
perform, given his residual functional capacity and
considering his age, education, and past work experience.
20 C.F.R. § 404.1594. As detailed in the R&R, the
ALJ concluded Plaintiff to be capable of the following
limited range of sedentary work:
[T]he ALJ found that [Plaintiff] can sit for one hour, stand
for 30 minutes and walk for 30 minutes; sit for a total of
six hours in an eight-hour workday; stand or walk for a total
of two hours in an eight-hour workday; lift or carry up to 10
pounds frequently and 20 pounds occasionally; frequently use
foot controls with his right lower extremity; occasionally
use foot controls with his left lower extremity; never climb,
balance or crawl; occasionally stoop, kneel or crouch. The
ALJ found that [Plaintiff] should avoid exposure to
industrial hazards, unprotected heights, driving and loud
noise. He can have occasional exposure to moving machinery,
humidity, wetness, pulmonary irritants, extreme temperatures
and vibrations. The ALJ found that [Plaintiff] has no
peripheral vision and requires a cane to ambulate. He found
that Justin can understand, remember and carry out simple
instructions and perform simple tasks, with occasional
interaction with others.
(Dkt. 24 at 5) (internal citations omitted).
sole objection to the R&R is that it errs in concluding
that substantial evidence supports the ALJ’s decision.
(Dkt. 25 at 1). Plaintiff asserts that the R&R’s
conclusion errs with respect to several aspects of the
ALJ’s analysis and findings reached in the RFC; many of
these errors were raised by Plaintiff’s motion for
summary judgment and rejected by Judge Ballou. The Court will
address each of these alleged errors in turn. For both the
reasons stated below and those ably expressed in Judge
Ballou’s R&R, Plaintiff’s objections will be
Moderate impairment in concentrating, persisting, and
first objects to the R&R’s conclusion that
substantial evidence supports the ALJ’s determination
that Plaintiff’s moderate impairment in concentrating,
persisting, and maintaining pace was adequately accounted for
in the RFC. (Dkt. 25 at 1). Plaintiff argues that there is a
logical gap left unexplained between the ALJ’s finding
that Plaintiff had moderate impairments in concentrating,
persisting, and maintaining pace, and the ALJ’s
conclusion in the RFC that Plaintiff was able to follow
simple instructions and perform simple tasks. (Dkt. 25 at
1–4) (citing Mascio v. Colvin, 780 F.3d 632
(4th Cir. 2015)). However, Judge Ballou correctly points to
several instances in the record where the ALJ considered
evidence of Plaintiff’s ability to both perform tasks
and stay on tasks, and the ALJ had subsequently determined
that-despite Plaintiff’s moderate impairment in
concentrating, persisting, and maintaining pace-he is capable
of following simple instructions and performing simple tasks
throughout the work day. (Dkt. 24 at 14) (“The ALJ
relied upon the conclusions of Drs. Gardner, Kadian and
Jennings that despite his moderate impairments in
concentration, persistence or pace, [Plaintiff] can perform
simple, routine tasks consistently for an 8-hour
workday.”); see also R. 54. The ALJ also gave
“significant weight” to Dr. Gardner who stated,
after completing a psychological evaluation and report in
2014, that Plaintiff was capable of completing a normal
workday or ...