Farnsworth v. Astrue

Citation604 F.Supp.2d 828
Decision Date04 March 2009
Docket NumberCivil Action No. 5:07CV129.
PartiesCarolyn Sue FARNSWORTH, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.
CourtUnited States District Courts. 4th Circuit. Northern District of West Virginia

Michael G. Miskowiec, Charleston, WV, for Plaintiff.

Helen Campbell Altmeyer, U.S. Attorney's Office, Wheeling, WV, for Defendant.

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE, DENYING MOTION FOR SUMMARY JUDGMENT BY PLAINTIFF, AND GRANTING MOTION FOR SUMMARY JUDGMENT BY DEFENDANT

FREDERICK P. STAMP, JR., District Judge.

I. Procedural History

The plaintiff, Carolyn Sue Farnsworth, filed an application on September 20, 2004, for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act. In the application, the plaintiff alleged disability since April 9, 2003, due to muscle problems and arthritis in the right neck; muscle problems and arthritis in her left shoulder; spinal and left leg pain; and shortness of breath. The plaintiff's application was denied at the initial and reconsideration levels. The plaintiff requested a hearing, and a hearing before an Administrative Law Judge ("ALJ") was held on July 11, 2006. On September 11, 2006, the ALJ issued a decision finding that the plaintiff was not under a disability as defined by the Social Security Act. The Appeals Council denied the plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. Thereafter, the plaintiff filed the present action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the adverse decision.

The case was referred to United States Magistrate Judge James E. Seibert for submission of proposed findings of fact and recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). The plaintiff and the defendant filed cross-motions for summary judgment. Magistrate Judge Seibert considered the plaintiff's and the defendant's motions for summary judgment and submitted a report and recommendation. In his report, the magistrate judge found that the Commissioner's decision to deny the plaintiff's application for benefits was proper because substantial evidence supports the ALJ's conclusion that other work the plaintiff could perform exists in significant numbers in the national economy; because the ALJ did not err by failing to obtain additional expert opinion on the plaintiff's limitations on her ability to reach; and because the ALJ's failure to include a limitation on the plaintiff's exposure to machinery in the Residual Functional Capacity ("RFC") hypothetical presented to the Vocational Expert ("VE") was harmless error. Accordingly, the magistrate judge recommended that the defendant's motion for summary judgment be granted and that the plaintiff's motion for summary judgment be denied.

In his report, Magistrate Judge Seibert informed the parties that if they objected to any portion of his proposed findings of fact and recommendation for disposition, they must file written objections within ten days after being served with a copy of the report. The plaintiff filed timely objections, in which she contends that the magistrate judge misinterpreted the plaintiff's contention regarding the Commissioner's duty to obtain additional information from the consultative physician regarding the plaintiff's limitation on her ability to reach in all directions and that the magistrate judge misapplied controlling law. For the reasons set forth below, this Court finds that the magistrate judge's report and recommendation should be affirmed and adopted in its entirety, that the defendant's motion for summary judgment should be granted, and that the plaintiff's motion for summary judgment should be denied.

II. Applicable Law

Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court is required to make a de novo review of those portions of the magistrate judge's findings to which objection is made. However, failure to file objections to the magistrate judge's proposed findings and recommendation permits the district court to review the recommendation under the standards that the district court believes are appropriate. See Webb v. Califano, 468 F.Supp. 825 (E.D.Cal.1979). Because objections were filed in this case, this Court conducts a de novo review of the magistrate judge's report and recommendation.

The Federal Rules of Civil Procedure provide that summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial burden of showing the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In reviewing the supported underlying facts, a court must view all inferences in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). However, "a party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials of [the] pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III. Discussion

This Court believes that a reiteration of the facts in this case is unnecessary here. Accordingly, this Court relies on the detailed recitation of facts provided in section II of Magistrate Judge Seibert's report and recommendation.

In her motion for summary judgment, the plaintiff contends that substantial evidence is not present in the record to support the ALJ's determination that other work the plaintiff is capable of performing is available in significant numbers in the national economy. She asserts two grounds in support of this contention. First, the plaintiff contends that the ALJ erred in determining the plaintiff's RFC at step five of the sequential analysis1 by failing to re-contact the plaintiff's consultative examiner, Dr. Silvina Padro, to ascertain the degree of limitation on the plaintiff's ability to reach resulting from her shoulder pain. Second, the plaintiff argues that the ALJ erred at step five of the sequential analysis by failing to consider the opinions of state agency physicians who concluded that the plaintiff should avoid even moderate exposure to machinery. According to the plaintiff, these errors caused the VE to overestimate the number of suitable jobs in the national economy which the plaintiff is capable of performing.

By contrast, the defendant's motion for summary judgment contends that the record contains substantial evidence to support the ALJ's conclusion that other work exists in significant numbers in the national economy which the plaintiff can perform. In support, the defendant claims that because the record before the ALJ was sufficient to determine that the plaintiff was not disabled, the ALJ had no duty to obtain additional medical evidence from the consultative physician, Dr. Padro. The defendant also asserts that even considering the limitations identified by the state agency physicians regarding the plaintiff's exposure to machinery, the VE identified a significant number of jobs in the national economy which the plaintiff can perform which accounted for that limitation.

An ALJ's findings must be upheld if supported by substantial evidence. See Milburn Colliery Co. v. Hicks, 138 F.3d 524, 528 (4th Cir.1998). Substantial evidence is that which a "`reasonable mind might accept as adequate to support a conclusion.'" Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.1990)(quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). Further, the "`possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence.'" See Sec'y of Labor v. Mutual Mining, Inc., 80 F.3d 110, 113 (4th Cir.1996)(quoting Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966)). It is the duty of the ALJ, not of the courts, to make findings of fact and to resolve conflicts in the evidence. The Court's scope of review is limited to determining whether the findings of the Secretary are supported by substantial evidence and whether the correct law was applied, not to substitute the Court's judgment for that of the Secretary. Hays, 907 F.2d at 1456.

A. Obligation to Obtain Additional Medical Evidence

The plaintiff alleges that the ALJ failed in his obligation to obtain additional medical evidence concerning the plaintiff's degree of limitation in her right shoulder. The magistrate judge found that the ALJ had no duty to re-contact the state agency examiner, Dr. Ali Lateef, to determine the plaintiff's degree of limitation because the evidence before the ALJ was adequate to ascertain whether the plaintiff is disabled. Therefore, the magistrate judge concluded that the ALJ did not err by failing to obtain additional medical evidence and, accordingly, that substantial evidence supported the ALJ's decision.

In her objections, the plaintiff argues that the magistrate judge erroneously identified the state agency physician, Dr. Lateef, as the examiner who should have been re-contacted, rather than the consultative physician, Dr. Padro, as the plaintiff had argued in her complaint and motion for summary judgment. According to the plaintiff, Dr. Lateef acknowledged in his assessment that Dr. Padro's assessment failed to indicate the degree of limitation concerning the plaintiff's ability to reach. The plaintiff argues that this omission created a sufficient gap in the medical...

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