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Shaffer v. Berryhill

United States District Court, S.D. West Virginia, Huntington Division

March 29, 2018

PERRY STERLING SHAFFER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. CHAMBERS UNITED STATES DISTRICT JUDGE

         This action for judicial review of an administrative determination under the Social Security Act was referred to a United States Magistrate Judge for proposed findings of fact and recommendation for disposition (“PF&R”) pursuant to 28 U.S.C. § 636(b)(1)(B). Now pending before the Court are Plaintiff's and Defendant's Briefs in Support of Judgment on the Pleadings. ECF Nos. 16, 17. The Magistrate Judge recommends that the Court DENY Defendant's Motion, GRANT Plaintiff's Motion, and REMAND this case to the Social Security Administration for further proceedings. For the following reasons, the Court REJECTS the Magistrate Judge's PF&R and REMANDS this case to the Magistrate Judge for further proceedings consistent with this Memorandum Opinion and Order. Both Defendant's and Plaintiff's motions subsequently remain pending in this Court.

         I. Background

         Plaintiff filed a Title XVI claim for supplemental security disability benefits with the Social Security Administration on October 18, 2012 in which he alleged disability beginning on April 15, 2011. ECF No. 2. His claim was initially denied on March 28, 2013, and Plaintiff filed a request for hearing on December 18, 2013. Id. An administrative hearing was held on August 5, 2015, during which an Administrative Law Judge (“ALJ”) heard evidence on Plaintiff's claims. After consideration of the case, the ALJ entered a decision on September 23, 2015 finding that Plaintiff was not disabled. Id.

         Plaintiff sought review of the ALJ's decision by the Appeals Council on November 20, 2015. Id. In his request for review, Plaintiff submitted additional evidence to the Council. ECF No. 11-2, at 6. The Council admitted the following new evidence in its consideration of Plaintiff's request for reconsideration: Exhibit 17E, Representative's Appeals Brief from Jan Dils, Esq. dated November 19, 2015; Exhibit 22F, Treatment records from Randall Hawkins, M.D., dated August 24, 2015 through September 29, 2015; and Exhibit 23F, Treatment record from Shrikant Vaidya, M.D., dated August 3, 2015. Id. After consideration of the administrative record and the new evidence, the Appeals Council denied Plaintiff's request for review on November 23, 2016, thereby making the ALJ's decision the final decision of the Commissioner. ECF No. 2.

         Plaintiff filed the present Complaint on January 20, 2017, seeking judicial review of the Commissioner's final decision to deny his claims for benefits. ECF No. 2. In his Complaint, Plaintiff makes two arguments: (1) “the ALJ erred by failing to properly assess [Plaintiff's] impairment of obesity at all steps of the sequential evaluation, ” and (2) “the ALJ erred by failing to perform the required function-by-function analysis when determining [Plaintiff's] [residual functional capacity].” ECF No. 16, at 8. Regarding his second argument, Plaintiff asserts that the ALJ had a duty to prepare a residual functional capacity assessment for all severe impairments. Id., at 12. Before reaching this step in her consideration of Plaintiff's case, the ALJ had found that Plaintiff suffered from several severe impairments including degenerative disc disease, obesity, asthma, hypertension, degenerative joint disease, congestive heart failure, depression, and sleep apnea. Id., at 13. The ALJ had explicitly found, however, that some of Plaintiff's alleged disabilities were not severe. See Tr. at 57; ECF No. 11-2, at 60. Specifically, the ALJ had found that “[psoriasis] [was] not a severe impairment.” Id. Plaintiff does not dispute this finding in his petition to this Court.

         Defendant filed a timely answer to Plaintiff's Complaint, ECF No. 10, and both parties filed Briefs in Support for Judgment on the Pleadings, ECF Nos. 16, 17. Plaintiff later filed a Reply to Defendant's Brief in Support. ECF No. 18. The case was referred to Magistrate Judge Dwane L. Tinsley for consideration and recommendation of disposition, and Judge Tinsley filed the present PF&R on February 28, 2018. ECF No. 19. Defendant filed timely objections to the PF&R on March 16, 2018. ECF No. 20.

         II. Standards of Review

         a. Standard of Review of PF&R

         In reviewing the PF&R, this Court must “make a de novo determination of those portions of the … [Magistrate Judge's] proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). In doing so, the Court can “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id. The Court, however, is not required to review the factual or legal conclusions of the Magistrate Judge to which no objections are made. Thomas v. Arn, 474 U.S. 140, 150 (1985).

         b. Standard of Review of Commissioner's Decision

         Pursuant to 42 U.S.C. § 405(g), “[t]he court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” After reviewing the prescribed materials, if the Court finds that the Commissioner's decision is supported by “substantial evidence, ” the Court must affirm the decision. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

         III. Discussion

         Defendant makes two objections to the PF&R. ECF No. 20. First, Defendant argues that the Magistrate Judge bases his recommendation on an issue not raised, and therefore waived, by Plaintiff and that, as such, Defendant had no opportunity to be heard on the issue before the Magistrate Judge made his recommendation. Id., at 1. Second, Defendant asserts that the basis upon which the Magistrate Judge recommends remanding this case to the Commissioner, Plaintiff's alleged psoriasis, is an inadequate and improper basis for remand. Id., at 5. The Court agrees with Defendant's second objection and FINDS that the evidence supports the ALJ's finding that Plaintiff's psoriasis is not a severe impairment such that it is disabling. Accordingly, the Court REJECTS the Magistrate Judge's PF&R and SUSTAINS Defendant's second objection. In sustaining ...


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