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Scherer v. Berryhill

United States District Court, N.D. West Virginia

April 4, 2018

HANS D. SCHERER, Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner for Operations, Social Security Administration Defendant.

          REPORT AND RECOMMENDATION

          JAMES E. SEIBERT U.S. MAGISTRATE JUDGE

         I. SUMMARY

         The Plaintiff advances three arguments, none of which the Court finds persuasive. Therefore, the Court recommends that the Plaintiff's [ECF Nos. 8 and 13] Motions for Summary Judgment be denied and the Commissioner's [ECF No. 11] Motion for Summary Judgment be granted.

         First, the Plaintiff argues that the Defendant improperly determined that the Plaintiff did not meet the severity of one of the impairments contained in the listings. However, the evidence pointed to by Plaintiff was not presented prior to the Administrative Law Judge's (“ALJ”) decision, so the Appeals Council properly determined it could not be considered. Furthermore, there is substantial evidence cutting the other way which supports the ALJ's conclusion.

         Second, the Plaintiff argues that the ALJ failed to properly develop the record with respect to the Plaintiff's spinal condition, and the Appeals Council erred in not consulting a medical expert before reaching a decision. Yet, the ALJ developed the record, his decision is supported by substantial evidence, and the decision of whether or not to make inquiries of a medical expert is discretionary. Also, the evidence Plaintiff says should have led the Appeals Council to consult a medical expert was properly not considered by the Appeals Council.

         Finally, the Plaintiff argues that the ALJ and Appeals Council failed to give proper weight to the findings and opinions of Plaintiff's physicians. However, as stated above, the ALJ's findings were indeed supported by substantial evidence, and proper weight was given by the ALJ. The Appeals Council properly declined to consider the later evidence presented by Plaintiff because of when it was presented, as will be discussed in more detail below.

         II. PROCEDURAL HISTORY

         On July 3, 2013, the Plaintiff, Hans D. Scherer, filed a Title II application for disability insurance benefits (DIB). R. 64. The Plaintiff's application alleged a disability beginning February 27, 2012. R. 64. The Plaintiff's application was denied on September 4, 2013, and again upon reconsideration on December 4, 2013. R. 64. Thereafter, the Plaintiff filed a request for a hearing on January 18, 2014. R. 64. The Plaintiff, represented by a non-attorney, appeared and testified at a video hearing in Martinsburg, West Virginia on May 19, 2015. R. 64. A vocational expert (“VE”) also testified. R. 64. On June 17, 2015, the ALJ issued an unfavorable decision. R. 61. The Appeals Council denied Plaintiff's request for review of the ALJ's findings on February 7, 2017. R. 1.

         On April 3, 2017, Plaintiff filed a complaint in this Court to obtain judicial review of the decision of the Commissioner of Social Security denying her application. ECF No. 1. The Plaintiff subsequently submitted additional evidence to the Appeals Council, which the Appeals Council declined to consider during the pendency of the action before this Court. R. 1.

         III. THE ALJ'S FINDINGS

         In determining whether the Plaintiff was disabled, the ALJ followed the five-step sequential evaluation process set forth in 20 C.F.R. §§ 404.1520; 416.920. The first step in the process is determining whether a claimant is currently engaged in substantial gainful activity. Id. §§ 404.1520(b); 416.920(b). If the claimant is not engaging in substantial gainful activity, then the second step requires the ALJ to determine whether the claimant has a medically determinable impairment that is severe or a combination of impairments that are severe. Id. §§ 404.1520(c); 416.920(c). If the claimant has a severe impairment or combination of impairments, then the analysis moves to the third step in the sequence, which requires the ALJ to determine whether the claimant's impairment or combination of impairments meets or equals any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Listings). Id. §§ 404.1520(d); 416.920(d). If an impairment meets or equals a listed impairment, the claimant is disabled. Id. §§ 404.1520(d); 416.920(d). However, if the impairment does not meet or equal a listed impairment, the ALJ must determine the claimant's residual functional capacity (“RFC”), which is the claimant's ability to do physical and mental work activities on a sustained basis despite the limitations of her impairments. Id. §§ 404.1520(e); 416.920(e).

         After determining the claimant's RFC, the ALJ must determine, at step four, whether the claimant has the RFC to perform the requirements of her past relevant work. Id. §§ 404.1520(f); 416.920(f). If the claimant does not have the RFC to do her past relevant work, then she has established a prima facie case of disability, and the burden shifts to the Commissioner to demonstrate, at the final step in the process, that other work exists in significant numbers in the national economy that the claimant can do, given the claimant's RFC, age, education, and work experiences. Id. §§ 404.1520(g); 416.920(g); see also McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983).

         At step one of the sequential process, the ALJ found that the Plaintiff had not engaged in substantial gainful activity since February 27, 2012, the alleged onset date. R. 66. At step two, the ALJ found that the Plaintiff had the following severe impairments: substance abuse disorder, depression, degenerative disc disease, hypertension, gout, and left foot friction injury. R. 66. At the third step, the ALJ found that none of the Plaintiff's impairments or any combination of his impairments met or medically equaled the severity of one of the impairments contained in the listings. R. 67. The ALJ then determined that the Plaintiff had the RFC:

[T]o perform light work as defined in 20 CFR 404.1567(b) with exceptions. The claimant must avoid all exposure to hazards such as machinery and unprotected heights, and can never climb ladders, ropes, or scaffolds. He can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. The claimant can occasionally push/pull and reach with his left upper extremity. He can tolerate no more than occasional exposure to temperature extremes (heat or ...

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