United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr., United States District Judge
is the objection filed on February 8, 2017, by plaintiff Mark
Lynn Jeffrey to the magistrate judge's Proposed Findings
and Recommendation (“PF&R”).
November 16, 2015, plaintiff, proceeding pro se, instituted
this civil action pursuant to 42 U.S.C. § 405(g).
Plaintiff seeks judicial review of the Commissioner's
administrative decision denying plaintiff's application
for disability insurance benefits and supplemental security
noted that plaintiff first filed for social security benefits
on August 30, 2007. His claim was denied by the
Administrative Law Judge on November 4, 2009. Tr. at 6. After
the appeals council denied his request for review,
plaintiff's counsel filed a complaint in district court.
On February 22, 2012, Judge Irene C. Berger vacated the
Commissioner's decision and remanded the matter for
further proceedings because the ALJ did not consider the
consultative examination report of Dr. Bruce Davis.
Id. at 524. Plaintiff thereafter became incarcerated
and as a result, his attorney withdrew as his council.
Id. at 568. After the ALJ again determined he was
not disabled, plaintiff, who remains incarcerated, instituted
this civil action.
action was referred to United States Magistrate Judge Dwane
L. Tinsley for consideration, pursuant to 28 U.S.C. §
636(b)(1)(B) and standing order in this district. The
magistrate judge filed his PF&R on February 24, 2017. In
that document, the magistrate judge recommends that the
Commissioner's final decision be affirmed and that this
action be dismissed from the docket of the court. See
PF&R at 10. As noted, plaintiff timely filed objections
to the PF&R. The Commissioner has not responded to
has five objections to the PF&R. First, plaintiff states
that there is not substantial evidence in the record as to
“his current health and physical condition.” See
Plaintiff's Objections to PF&R (“Obj.”)
at 3-4. Second, plaintiff objects to the ALJ's step three
determination respecting Listed impairments. Id. at
4. Third, plaintiff says that “it is not
apparent” that the ALJ considered his past relevant
work and determined whether or not he could perform his past
work despite his impairments. Id. at 4-5. Fourth,
plaintiff argues that because he turned 55 on June 10, 2011,
he is in the “advanced age” category for social
security purposes. Id. at 6. Finally, plaintiff
states that the PF&R does not indicate that the ALJ
“alerted plaintiff to the availability of
representation through Legal Services and Legal Aid
Standard of Review
court reviews de novo those portions of the magistrate
judge's PF&R to which objections are timely filed. 28
U.S.C. § 636(b)(1)(B); see Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982); see also 20 C.F.R. §
416.927(e)(1) (ultimate decision regarding disability
determinations rests with the Commissioner). On the other
hand, the standard for review of the Commissioner's
decision is rather deferential to the Commissioner, for,
“[u]nder the Social Security Act, [a reviewing court]
must uphold the factual findings of the [ALJ] if they are
supported by substantial evidence and were reached through
application of the correct legal standard.” Johnson v.
Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (internal
citations and quotations omitted); Oppenheim v. Finch, 495
F.2d 396, 397 (4th Cir. 1974) (court must scrutinize the
record as a whole to determine whether the conclusions
reached are supported by substantial evidence); see also 42
U.S.C. § 405(g). Substantial evidence is that which
“a reasonable mind might accept as adequate to support
a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (internal citations and quotations omitted).
reviewing for substantial evidence, [a district court does]
not undertake to reweigh conflicting evidence, make
credibility determinations, or substitute [its] judgment for
that of the ALJ.” Johnson, 434 F.3d at 653 (internal
citations and quotations omitted). Substantial evidence is by
definition more than “a mere scintilla, ” Smith
v. Chater, 99 F.3d 635, 638 (4th Cir. 1996), but “may
be somewhat less than a preponderance, ” Blalock v.
Richardson, 483 F.2d 773, 776 (4th Cir. 1972) (quoting Laws
v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1996)).
Social Security regulations establish a “sequential
evaluation” for the adjudication of disability claims.
See 20 C.F.R. §§ 404.1520(a), 416.920(a). The first
question is whether the claimant is currently engaged in
gainful employment. Id. at §§
404.1520(a)(4)(i), 416.920(a)(4)(i). If not, the second
question is whether the claimant suffers from a severe
impairment. Id. at §§ 404.1520(a)(4)(ii),
416.920(a)(4)(ii). If so, the third question is whether the
claimant's impairment meets or equals any of the specific
impairments listed in Appendix 1 to Subpart P of the
regulations. Id. at §§
404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the
claimant's impairments meet or equal a listing, he or she
is considered disabled, and is awarded benefits. Id.
If not, the inquiry continues on to whether the
claimant's impairments prevent the performance of past
relevant work. Id. at §§
404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant
satisfies this inquiry, the claimant establishes a prima
facie case of disability, shifting the burden to the
Commissioner for the fifth and final inquiry. Hall v. Harris,
658 F.2d 260, 264 (4th Cir. 1981); McLain v. Schweiker, 715
F.2d 866, 868-69 (4th Cir. 1983). The final inquiry is
whether the claimant is able to perform other forms of
substantial gainful activity considering the claimant's
impairments, age, education and prior work experience. 20
C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
the ALJ found at step one that plaintiff was not engaged in
substantial employment. Tr. at 459. At step two, the ALJ
found that plaintiff suffered from the following severe
impairments: diabetes mellitus, obesity, arthritis,
hyperlipidemia, peripheral neuropathy, and depression.
Id. At step three, the ALJ found that
plaintiff's impairments did not meet or equal any listed
impairment. Id. at 460-61. At step four, the ALJ
found that plaintiff had the Residual Functional Capacity
(“RFC”) to perform light work with the following
[H]e was able to stand and/or walk up to one hour
continuously and four hours in an eight-hour workday in
total; sit two hours continuously and up to eight hours or
more hours in an eight-hour workday; occasionally operate
foot controls bilaterally; frequently but not constantly able
to handle, finger, feel, reach, push, and pull bilaterally;
able to occasionally stoop, kneel, and crouch but never
crawl; occasionally able to tolerate exposure to hazards such
as unprotected heights or moving machinery; able to
occasionally tolerate exposure to extreme heat, cold, or
vibrations; and able to use common sense understanding to
perform instructions provided in oral, written, or
diagrammatic form consistent with a range of unskilled work
at or below reasoning level 3 as those terms are defined in
the Dictionary of Occupational Titles.
Id. at 461. The ALJ determined that plaintiff
retained the above RFC at least in part because he found that
plaintiff's “medically determinable impairments
could reasonably be expected to cause the alleged symptoms;
however, [his] statements concerning the intensity,
persistence and limiting effects of these symptoms are not
entirely credible for the reasons explained in this
decision.” Id. at 462.
based on his assessment of plaintiff's RFC and the
testimony of Ruth Fast, the vocational expert, the ALJ found,
at steps four and five, that plaintiff was not capable of
performing any past relevant work, but was capable of
performing the requirements of representative occupations,
such as a mail sorter, garment folder, and information clerk.
Id. at 465. The ALJ concluded that plaintiff
“was capable of making a successful adjustment to other
work that existed in significant numbers in the national
economy.” Id. As a result, he determined that
plaintiff was not disabled. Id.
neither plaintiff nor the Commissioner filed any pleadings or
motions in the case, the magistrate judge's PF&R was
based on the record of the case. After considering the
evidence and the ALJ's decision, the magistrate judge
recommends that the court affirm the final decision of the
Commissioner and dismiss the matter from the docket of the
court. See PF&R at 10.
Plaintiff's Current Condition
first argues that the decision of the ALJ is not supported by
substantial evidence because of the lack of evidence in the
record as to his current health and physical condition. Obj.
at 3. Plaintiff asserts that he “should be given the
opportunity to have a complete psychiatric evaluation, a
recent medical evaluation, and current consultative
psychological evaluation, ” id., which he says
“would account for the deterioration of [his] health
and physical condition since the consultative medical
evaluation performed by Dr. Bruce Davis on April 4,
2007.” Id. at 6.
to the ALJ, plaintiff's earning record shows that he had
“acquired sufficient quarters of coverage to remain
insured through December 31, 2007.” Tr. at 457.
Plaintiff must therefore must establish that he had a
disability during the relevant time period of September 1,
2002, his alleged onset date of disability, through December
31, 2007, the date he last met the insured status requirement
(“DLI”) under Title II of the Social Security
Act. See 42 U.S.C. § 416.
post-DLI evidence may be considered and evaluated in
determining whether plaintiff was disabled prior to the DLI,
plaintiff has not explained how new consultative examinations
will demonstrate that he was disabled prior to December 31,
2007, arguing only that it will show his impairments have
worsened since his last examinations. The ALJ considered the
evidence in the record pertaining to plaintiff's
impairments, including consultative evaluations from 2007 and
2008. Tr. at 463. The court thus finds plaintiff's first
objection is without merit.
next contends that the ALJ erred in concluding that his
impairments did not meet or medically equal any listing at
step three. Obj. at 4. Plaintiff does not point to any
evidence or listing that the ALJ should have but failed to
properly consider, and otherwise fails to explain his
objection to the ALJ's step three determination.
obtain de novo review of a magistrate judge's findings,
the party objecting to the magistrate judge's
recommendation must file specific written objections, see
Fed.R.Civ.P. 72(b), and the district judge “shall make
a de novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1)(C). The
objection must be made “with sufficient specificity so
as reasonably to alert the district court of the true ground
for the objection, ” and cannot be merely a generalized
objection. U.S. v. Midgette, 478 F.3d 616, 621-22 (4th Cir.
2007). “[W]hen no timely objection is filed, the court
need only satisfy itself that there is no clear error on the
face of the record in order to accept the
recommendation.” Fed.R.Civ.P. 72.
plaintiff's objection to the ALJ's step three
determination does not point to any specific error within the
PF&R, the court will review the ALJ's step three
determination for clear error.
regards to plaintiff's diabetes mellitus and neuropathy,
the ALJ considered Listing 9.08. The ALJ found that
“there was no evidence of severe motor dysfunction,
frequent acidosis, amputation, or retinopathy. The claimant
was also noncompliant with treatment and medications.”
Id. at 460 (internal citations omitted). It appears
that in analyzing plaintiff's diabetes mellitus, the ALJ
used the old version of section 9.00, which, effective June
7, 2011, was revised to delete the individual endocrine
listings, including listing 9.08. See Revised Medical
Criteria for Evaluating Endocrine Disorders, 76 FR 19692-01.
The revised criteria states that the revision is due to
“significant advances in detecting endocrine disorders
at earlier stages and newer treatments, [which] have resulted
in better management of these conditions since we last
published final rules making comprehensive revisions to the
endocrine listings in 1985. . . . Therefore, we have
determined that . . . we should no longer have listings in
sections 9.00 and 109.00 based on endocrine disorders
alone.” Id. at 19692.
version of listing 9.08 under which the ALJ analyzed
plaintiff's impairments states Diabetes mellitus. With:
A. Neuropathy demonstrated by significant and persistent
disorganization of motor function in two extremities
resulting in sustained disturbance of gross and dexterous
movements, or gait and station (see 11.00C); or
B. Acidosis occurring at least on the average of once every
two months documented by appropriate blood chemical tests (pH