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Jeffrey v. Berryhill

United States District Court, S.D. West Virginia, Charleston

March 31, 2017

MARK LYNN JEFFREY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          John T. Copenhaver, Jr., United States District Judge

         Pending is the objection filed on February 8, 2017, by plaintiff Mark Lynn Jeffrey to the magistrate judge's Proposed Findings and Recommendation (“PF&R”).[1]

         I. Procedural History

         On 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 income.

         It is 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.

         This 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 plaintiff's objections.

         Plaintiff 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 Program.” Id.

         II. Standard of Review

         The 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).

         “In 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)).

         III. Discussion

         The 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).

         Here, 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 limitations:

[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.

         Finally, 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.

         Because 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.

         A. Plaintiff's Current Condition

         Plaintiff 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.

         According 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.

         Although 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.

         B. Step Three Determinations

         Plaintiff 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.

         To 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.

         Because 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.

         With 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.

         The old 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 or ...

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