United States District Court, N.D. West Virginia
HANS D. SCHERER, Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner for Operations, Social Security Administration Defendant.
REPORT AND RECOMMENDATION
E. SEIBERT U.S. MAGISTRATE JUDGE
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.
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
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.
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.
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.
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.
THE ALJ'S FINDINGS
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);
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).
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 ...