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Scherer v. Berryhill

United States District Court, N.D. West Virginia, Elkins

April 26, 2018

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

          ORDER ADOPTING REPORT AND RECOMMENDATION

          JOHN PRESTON BAILEY UNITED STATES DISTRICT JUDGE

         On this day, the above-styled matter came before this Court for consideration of the Report and Recommendation (“R&R”) of United States Magistrate Judge James E. Seibert [Doc. 14] and the plaintiff's Objections thereto [Doc. 15]. Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court is required to make a de novo review of those portions of the magistrate judge's findings to which objection is made. However, failure to file objections permits the district court to review the R&R under the standards that the district court believes are appropriate, and under these circumstances, the parties' right to de novo review is waived. See Webb v. Califano, 468 F.Supp. 825 (E.D. Cal. 1979). Accordingly, this Court will conduct a de novo review only as to those portions of the R&R to which the plaintiff objected. The remaining portions of the R&R will be reviewed for clear error. As a result, it is the opinion of this Court that the R&R should be ADOPTED.

         I. Background

         On July 3, 2013, the plaintiff, Hans D. Scherer, filed a Title II application for a period of disability and disability insurance benefits (“DIB”), alleging a disability beginning February 27, 2012 [Doc. 6-2 at 65]. The plaintiff's claim was initially denied on September 4, 2013, and again upon reconsideration on December 4, 2013 [Id.]. Thereafter, the plaintiff filed a request for a hearing on January 18, 2014 [Id.]. The plaintiff, represented by a non-attorney, appeared and testified at a video hearing in Martinsburg, West Virginia on May 19, 2015 [Id.]. A vocational expert (“VE”) also testified [Id.]. On June 17, 2015, the ALJ issued an unfavorable decision [Id.]. The Appeals Council denied plaintiff's request for review of the ALJ's findings on February 7, 2017 [Id. at 2].

         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 his application [Doc. 1]. The plaintiff subsequently submitted additional evidence to the Appeals Council, which the Appeals Council reviewed, but concluded that no change in the prior action was warranted [Doc. 6-2 at 2].

         The plaintiff argues that the Appeals Council failed to properly consider new evidence. In the memorandum in support of motion for summary judgment, the defendant responds to each claim and argues that the ALJ's decision is supported by substantial evidence and that the Appeals Council properly declined to consider “new evidence” as a basis to review the ALJ's decision [Doc. 12].

         On April 4, 2018, Magistrate Judge Seibert entered his R&R in which he concludes that the ALJ's decision denying the plaintiff's application for DIB is supported by substantial evidence and that the Appeals Council properly declined to consider the later evidence presented by plaintiff [Doc. 14]. As such, the magistrate judge recommends that the plaintiff's Motions for Summary Judgment [Docs. 8, 13] be denied and the defendant's Motion for Summary Judgment [Doc. 11] be granted. The magistrate judge further recommends that the decision of the Commissioner be affirmed and the case be dismissed with prejudice. On April 17, 2018, the plaintiff filed timely objections [Doc. 15]. Plaintiff's sole objection claims error in the Appeals Council's failure to consider the new medical evidence. The defendant filed a response thereto on April 19, 2018 [Doc. 16].

         II. Applicable Legal Standards

         A. Judicial Review of an ALJ Decision

         Judicial review of a final decision regarding disability benefits is limited to determining whether the findings are supported by substantial evidence and whether the correct law was applied. See 42 U.S.C. § 405(g). “The findings . . . as to any fact, if supported by substantial evidence, shall be conclusive.” Richardson v. Perales, 402 U.S. 389, 390 (1971); Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). The phrase “‘supported by substantial evidence'” means “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” See Perales, 402 U.S. at 401 (citing Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence “consists of more than a mere scintilla of evidence[, ] but may be somewhat less than a preponderance . . ..” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). Thus, “[i]t is not within the province of a reviewing court to determine the weight of the evidence; nor is it [the court's] function to substitute [its] judgment . . . if [the] decision is supported by substantial evidence.” Id. (citing Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962)).

         Ultimately, it is the duty of the ALJ reviewing a case, and not the responsibility of the courts, to make findings of fact and to resolve conflicts in the evidence. King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979). “This Court does not find facts or try the case de novo when reviewing disability determinations.” Id.; see also Seacrist v. Weinberger, 538 F.2d 1054, 1056-57 (4th Cir. 1976); and Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990).

         B. Five-Step Evaluation Process

         To determine whether a claimant is disabled, the ALJ considers the ...


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