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Perry v. Colvin

United States District Court, District of Columbia

February 8, 2016

JANELL PERRY, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM OPINION ADOPTING REPORT & RECOMMENDATION OF MAGISTRATE JUDGE

KETANJI BROWN JACKSON United States District Judge

Plaintiff Janell Perry ("Plaintiff) has filed the instant lawsuit to challenge an Administrative Law Judge's ("ALJ's") denial of an application for disability and supplemental security income benefits that Plaintiff submitted to defendant Social Security Administration ("SSA") in 2004. This Court referred this matter to a Magistrate Judge for full case management on March 19, 2015, and the Magistrate Judge entertained the parties' cross motions for reversal and affirmance. (See Mem. in Supp. of PL's Mot. for J. of Reversal, ECF No. 9-1, at 5-9 (asserting that the ALJ failed to giver proper weight to the opinion of Plaintiff s treating physician); Def.' s Mem. in Supp. of Her Mot. for J. of Affirmance & in Opp'n to Mot. for J. of Reversal, ECF No. 10, at 17 (arguing that "substantial evidence supports the ALJ's decision that the integrity of [the treating physician's] process was called into question, and that his opinion was not entitled to a great deal of weight, let alone controlling weight").)[1]

Before this Court at present is the Report and Recommendation that the assigned Magistrate Judge, Alan Kay, has filed. (See ECF No. 13.)[2] The Report and Recommendation recommends that this Court deny Plaintiff s motion for reversal and grant Defendant's motion for affirmance because, in the Magistrate Judge's view, the ALJ's decision "was supported by substantial evidence in the record and . . . the ALJ correctly applied the law." (Id. at 13.) With respect to Plaintiff's particular contention that the ALJ had erred when evaluating the opinion of Plaintiff s treating physician, Magistrate Judge Kay concluded that the ALJ had "thoroughly examined the record" (id. at 11) and had properly determined that the physician's opinion was not entitled to great weight due to inconsistencies in the diagnosis and recommendations, and questionable assertions in the physician's findings. (Id. at 11-14; see alsoid. at 12 (noting, too, that "[t]he ALJ also took into consideration the fact that [the doctor] was disciplined in 2004, for 'over diagnosing, over treating, and over prescribing medications" (citation omitted)).)

Magistrate Judge Kay's Report and Recommendation also specifically advised the parties that either party may file written objections, which must include the portions of the findings and recommendations to which each objection is made and the basis for each such objection. (Id. at 13.) The Report and Recommendation further advised the parties that failure to file timely objections may result in waiver of further review of the matters addressed in the Report and Recommendation. (Id. at 13-14.) Under this Court's local rules, any party who objects to a Report and Recommendation must file a written objection with the Clerk of the Court within 14 days of the party's receipt of the Report and Recommendation. LCvR 72.3(b).

As of the current date-over two months after the Report and Recommendation was issued-no objections have been filed. Moreover, this Court has reviewed Magistrate Judge Kay's Report and Recommendation, and it agrees with the report's analysis and conclusions. Therefore, as set forth in the separate order that accompanies this Memorandum Opinion, the Report and Recommendation of the Magistrate Judge entered in this matter on November 30, 2015, is ADOPTED in its entirety, and, accordingly, Plaintiff's Motion for Judgment of Reversal is DENIED and Defendant's Motion for Judgment Affirmance is GRANTED.

Appendix A

REPORT AND RECOMMENDATION

ALAN KAY UNITED STATES MAGISTRATE JUDGE

This case was referred to the undersigned for a Report and Recommendation on Plaintiffs Motion for Judgment of Reversal ("Motion to Reverse") [9] and Memorandum in support thereof ("Memorandum to Reverse") [9-1] and Defendant's Motion for Judgment of Affirmance ("Motion to Affirm") [10] and Memorandum in support thereof ("Memorandum to Affirm") [11]. Plaintiff requests that the Court reverse the December 3, 2014 decision of the Administrative Law Judge denying Plaintiff Janell Perry ("Plaintiff or "Perry") disability insurance benefits ("DIB") and supplemental security income ("SSI") benefits, or alternatively, that the Court remand this matter to the Social Security Administration, pursuant to 42 U.S.C. §405(g), for a new administrative hearing. (Motion to Reverse at 1). Defendant requests entry of judgment in favor of the Social Security Administration ("SSA") on grounds that the ALJ's conclusion that Perry is not entitled to DIB or SSI benefits under the Act is supported by substantial evidence. (Motion to Affirm at 18).

I. Background

Plaintiff, Janell Perry, is a 46-year old woman residing in Washington, DC. (Administrative Record ("AR") at 302). Perry has a college degree in sociology with a concentration in criminology, and no additional training. (AR at 159, 637, 670). Perry's past work experience includes work as a social services representative, counselor, and family advocate. (AR 18, 122-24, 159, 672-73).

The Plaintiff was involved in a work-related elevator accident in May, 2003, and injured her right foot and lower back. (Memorandum to Reverse at 3). Plaintiff alleges that she was subsequently diagnosed with chronic pain syndrome, a herniated disc, degenerative disc disease, and lumbar radiculopathy. (Id.). Plaintiff maintains that "[conservative measures such as physical therapy, epidural steroid injections, and medication have been ineffective in providing lasting pain relief. (Id.).

Perry protectively filed an application for Disability Insurance Benefits on July 28, 2004, alleging disability, commencing May 30, 2003, on the basis of a herniated disc and nerve damage.[1] (AR at 16, 116). The Plaintiffs claim was denied initially and upon reconsideration. (AR at 34-36, 38, 39-40). On June 13, 2005, the Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR at 16, 44). On October 22, 2007, without giving the claimant a full administrative hearing (AR at 326), the ALJ issued a decision finding that Perry was not disabled under the Act. (AR at 13-30). The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Perry's request for review. (AR at 5-7). Perry appealed the case to the United States District Court for the District of Maryland. (AR at 289). On December 13, 2010, the District Court granted the Commissioner's Motion to Remand pursuant to sentence four of 42 U.S.C. §405(g). (AR at 291-92). On February 7, 2011, the Appeals Council remanded the case to the ALJ for further administrative proceedings consistent with the order of the court. (AR at 289-90).

On October 27, 2011, the ALJ issued a decision finding that Perry was not disabled under the Act, incorporating by reference her earlier October 27, 2007 decision (AR at 326), but without holding a hearing. (AR at 277-282). Perry again appealed the case to the United States District Court for the District of Maryland, and, on April 29, 2013, the District Court granted the Commissioner's Motion to Remand pursuant to sentence four of 42 U.S.C. §405(g). (AR at 321- 23). On August 2, 2013, the Appeals Council remanded the case to another ALJ for further administrative proceedings, noting that the previous "Administrative Law Judge did not allow the claimant to testify or to respond to any of her representative's questions at an administrative hearing prior to issuing an unfavorable decision." (AR at 326-28). The Appeals Council ordered that, upon remand, the ALJ will:

• Comply with the Appeals Council's order in accordance with 20 C.F.R. 404.977(b), give proper notice of, and conduct a full administrative hearing in accordance with 20 C.F.R. 404.944 and 404.950, permitting the claimant and/or her representative to present evidence, state the claimant's position, and to ask questions of any witnesses pertaining to the issue of whether the claimant was disabled on or before her date last insured.

On April 1, 2014, Perry, who was represented by counsel, and a vocational expert appeared and testified at an administrative hearing. (AR at 626-86). On December 3, 2014, an ALJ issued a decision (AR at 302-19), finding that Perry was not disabled from May 30, 2003, her alleged date of disability onset, through December 31, 2008, her date listed for the purposes of DIB (AR at 318-19) (the relevant period), because she could perform other work which exists in significant numbers in the national economy. (AR at 316-19). The ALJ stated that:

Based on the testimony of the vocational expert, the undersigned concludes that, through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, the claimant was capable of making a successful adjustment to other work that existed in significant numbers in the national economy.

Plaintiff now seeks judicial review of the ALJ's decision under 42 U.S.C.A. ยง405(g). Specifically, Plaintiff seeks either a reversal of the ALJ's decision and a finding of disability as of May 30, 2003, her alleged date of onset, or in the alternative, a ...


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