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Hutton v. Berryhill

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

July 16, 2018

KENNETH RAY HUTTON Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          PROPOSED FINDINGS AND RECOMMENDATION

          DWANE L. TINSLEY UNITED STATES MAGISTRATE JUDGE

         Pending before this Court is Plaintiff's Brief in Support of Motion for Judgment on the Pleadings (ECF No. 7), Brief in Support of Defendant's Decision (ECF No. 8) and Plaintiff's Reply to Defendant's Brief in Support of Defendant's Decision (ECF No. 9).

         Background

         On June 3, 2013, Kenneth Ray Hutton, Claimant, protectively applied for disability and disability insurance benefits (DIB) under Title II of the Social Security Act, alleging disability beginning on February 27, 2010. The claim was denied initially on June 3, 2013, and upon reconsideration on October 15, 2013. Claimant filed a written request for hearing before an Administrative Law Judge (ALJ) on November 25, 2013. Claimant appeared for the hearing in Huntington, West Virginia, and the ALJ presided over the hearing by video from St. Louis, Missouri on March 31, 2015. In the Decision dated May 22, 2015, the ALJ determined that based on the application for a period of disability and disability insurance benefits, the Claimant was not disabled under sections 216(i) and 223(d) of the Social Security Act. Claimant filed a Request for Review of Hearing Decision by the Appeals Council (AC). Claimant requested that the ALJ's decision be reviewed by the AC. On August 31, 2016, the AC denied Claimant's request for review of the ALJ's decision (Tr. at 7-13). The AC stated that “We found no reason under our rules to review the Administrative Law Judge's decision” (Tr. at 7). The AC held:

In looking at your case, we considered the reasons you disagree with the decision and the additional evidence listed on the enclosed Order of Appeals Council. We considered whether the Administrative Law Judge's action, findings or conclusion is contrary to the weight of the evidence currently of record.
We found that this information does not provide a basis for changing the Administrative Law Judge's decision.
We also looked at medical records from Huntington VAMC[1] dated February 26, 2014, through October 29, 2014 (101 pages). This document is not new because it is a copy of Exhibit 10F and Exhibit 12F/39-135 (Tr. at 8).

         On August 31, 2016, the AC made 242 pages of medical records additional evidence received from Claimant part of the record (Tr. at 12). That evidence consists of the following exhibits:

Exhibit 10E Representative Brief Dated June 10, 2015 (3 pages)
Exhibit 13F Medical records from Huntington VAMC dated February 14, 2014 through May 29, 2015 (242 pages) (Tr. at 12).

On September 28, 2016, Claimant sent a letter requesting that the AC vacate its August 31, 2016, denial and remand this case for consideration of the previously submitted updated Veterans Affairs (VA) disability decision.

         On November 16, 2016, a Notice of AC Action stated:

This is about your request for review of the Administrative Law Judge's decision dated May 22, 2015.
We Are Setting Aside Our Earlier Action
On August 31, 2016, we told you that we had denied your request for review. We are now setting aside our earlier action to consider additional information.
We Have Again Denied Your Request for Review
We found no reason under our rules to review the Administrative Law Judge's decision. Therefore, we have denied your request for review.
This means that the Administrative Law Judge's decision is the final decision of the Commissioner of Social Security in your case (Tr. at 1).

         On November 16, 2016, an Order of Appeals Council stated that the additional evidence made part of the record consists of the following exhibits:

Exhibit 10E Representative Brief Dated June 10, 2015 (3 pages)
Exhibit 11E Representative Brief dated September 28, 2016 (4 pages)
Exhibit 13F Medical records from Huntington VAMC dated February 14, 2014 through May 29, 2015 (242 pages)
Exhibit 14F Medical Records from Huntington VA Regional Office dated January 15, 2016 through March 11, 2016 (16 pages) (Tr. at 5)

         Claimant brought the present action requesting this Court to review the decision of the defendant and that upon review, it reverse and remand the decision “for the correction of errors (ECF No. 7).

         Standard ...


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